Judge Temporarily Blocks Trump’s Executive Order on Birthright Citizenship
“Frankly I have difficulty understanding how a member of the Bar could state unequivocally that this is a constitutional order.”
Federal Judge John C. Coughenour of the United States District Court for the Western District of Washington placed a temporary block on President Donald Trump’s executive order that clarifies birthright citizenship.
Coughenour wrote, “This is a blatantly unconstitutional order.”
Coughenour determined the plaintiffs satisfied:
Merits: Violates the Fourteenth Amendment and Immigration and Nationality Act.
Irreparable harm: Increases “unrecoverable costs for providing essential medical care and social services to States’s residents and creating substantial administrative burdens for state agencies that are forced to comply with the Order.”
All of those tips the balance of equities “toward the Plaintiff States and the public interest” enough for temporary relief.
From The Seattle Times:
“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order,” Coughenour, an appointee of Ronald Reagan, said from the bench. “There are other times in world history where we look back and people of goodwill can say where were the judges, where were the lawyers?”
Coughenour interrupted before Brett Shumate, a Justice Department attorney, could even complete his first sentence.
“In your opinion Is this executive order constitutional?” he asked.
Shumate said “it absolutely is.”
“Frankly, I have difficulty understanding how a member of the Bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”
On his first day in office, Trump signed “Protecting the Meaning and Value of American Citizenship.”
The executive order is meant to clarify the 14th Amendment:
Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment states: “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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.
But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
Okay, let’s look at the history of the Citizenship Clause in the 14th Amendment:
Fourteenth Amendment, Section 1:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It’s easy to interpret the meaning of the clause by reading it.
But how did the authors of the amendment interpret it?
In 1866, Republican Michigan Sen. Jacob Howard introduced the clause’s text to the chamber after Senator William Pitt Fessenden, Chair of the Joint Committee on Reconstruction, got sick.
“This amendment which I have offered, is simply declaratory of what I regard as the law of the land already, 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,” he said.
The next line in the publication matches the quote in the post above word for word.
“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.”
This is where grammar comes into play. One could interpret Howard’s sentence as saying the clause does not apply to foreigners.
However, if you look at the commas, one could also interpret it as “aliens” modifying “foreigners,” and those foreigners are the foreign diplomats. That means the children born to ambassadors or other foreign diplomats here in America cannot receive citizenship.
But “every other class of persons” can.
I am an originalist and English major. Therefore, I believe Howard clarified that the amendment applies to everyone except the children born to foreign diplomats.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Teeing it up for appeal and on to the SCOTUS. Keep in mind that native tribes didn’t get citizenship until the 1920s. So this judge just did what Trump needed done.
This will just be reaching the SCOTUS about the time of the mid-terms so Democrats will have to defend this to the voters in order to get re-elected.
And Republicans will have to defend against the attacks of the democrat voter base and lamestream media machine to hold the House and possibly Senate.
Absolutely.
Trump trolled the pond, and the stupidest fish bit.
Now that he’s “standing,” he can walk it all the way up to SCOTUS.
This was what Trump and his team anticipated so they did it early in his term to make sure it gets to SCOTUS under them. It will be interesting to see how this plays out but I think the intention of the 14th Amendment is clear to everyone. It was a reaction to the Civil War and the freed slaves. It was not meant to include everyone that could illegally enter the US and drop a baby.
The 13th, 14th, and 15th Amendments (Reconstruction amendments or Civil War amendments) were passed to do three specific things. The 13th amendment freed the black slaves. The 14th guaranteed that the newly freed black slaves and their descendants were citizens of the United States. And the 15th guaranteed blacks equal protection under the law. And that was it. The 13th, 14th, and 15th amendments had nothing to do with birthright citizenship for children of illegals born in the United States.
Sounds like this judge needs to take a reading comprehension course, and then proceed to read the Fourteenth Amendment in its entirety.
It’s been a while since my 1975-76 Con Law class in law school so I refreshed myself just now on Amendment 14. Having done so it’s pretty clear to me that the judge is right and that no lawyer can ethically argue that birthright citizenship can be abolished except by amending the constitution.
If you believe otherwise, please tell me what I missed.
You cannot create something out of something that does not exist. The judge is reasoning that you can indeed create something out of nothing
Wrong. He is applying Amendment 14 as written. That is what judges are supposed to do.
If you read the intent of the amendment by the author it is clear that it was to cover the freed slaves. The phrase “subject to the jurisdiction” meant people who were here legally but not citizens. It had nothing to do with aliens coming here pregnant to create a child as a US citizen.
I recall that the 1898 case referred to on TV was about the child of Chinese parents who were here legally but could not readily become citizens at the time. As noted, a child of “gotaway” illegals would not be similar. IMO something consistent might be that for anyone legally allowed to be in the USA, the baby is a citizen.
The “author’s” intent is irrelevant, but in fact you’re wrong even there. His purpose was to cover the freed slaves. But he was very conscious that it would cover everyone born here except those not subject to our laws at all. Diplomats and “Indians not taxed”.
The intent of the authors, and the understanding of all who voted for the amendment, was correctly that the meaning of “and subject to the jurisdiction thereof”, applied only to persons who had established themselves as legal residents of a state, and for whom the status of “subject to the jurisdiction” of the U.S. was both valid and accepted. This meaning applied to the freed slaves. In the case of native Americans living on reservations, it did not. The 14th was passed in 1868, but American Indians were not granted citizenship until 1924. But between 1868 and 1924, THOUSANDS of children of native Americans living on reservations were born in hospitals on American soil, but they were not granted citizenship because the 14th DOES NOT grant citizenship to children born on American soil, unless they were legally established residents of a state and subject to the jurisdiction thereof. And it still does not.
No, it was not. They understood “subject to the jurisdiction” exactly the same way we do today; it means you have to obey the laws and pay taxes, and can be sued and forced to testify,
Tribal Indians were not subject to US jurisdiction. They weren’t just “considered” outside US jurisdiction, they actually were outside it. They could not be sued. They did not have to pay taxes. They were not subject to US law.
However they could always choose to join civilization and be subject to the same laws as other Americans if they wanted to, and those Indians were citizens and were counted in the census. That’s why the constitution refers to “Indians not taxed”; because there were Indians who were taxed and were citizens.
People who are here illegally are subject to the jurisdiction of the U.S. while they are here. People with diplomatic immunity are not. If the law means what you think, it could and should have used the words lawfully present.
I don’t want judges ignoring the law to teach a result political that I like. If you don’t like the law, change it.
LOL>
So the Chinese People’s Army invades America and you are claiming that the invading soldiers are here subject to the jurisdiction of the U.S. After all, the Constitution doesn’t say anything about the people not being an invasion force (which is actually what the illegals here, now, are) ROFLMAO!
You are completely insane. Go try to sell that lunatic position. Anyone with an IQ over 70 will laugh you out of the room. I’m beginning to think that you are a WEF plant or something.
Members of invading armies are not subject to the local jurisdiction, just like diplomats. They can’t be prosecuted for violating US law, they can’t be sued, they don’t have to pay taxes. Invading the USA as part of an army engaged in a legitimate act of war is NOT a crime, and its soldiers can’t be prosecuted for it. They can be shot on the battlefield, and they can be taken prisoner and held for as long as it suits the USA, without the right habeas corpus.
The Fourteenth Amendment does not grant birthright citizenship any more than it grants a complete stranger you might find hiding in your basement membership in your family.
Trump’s executive order is not at all in conflict with the Constitution.
Yes, it does, and you are so wrong that no honest person could possibly believe what you claim to believe.
Your constant, obsessive “nuh uh!” comments are eye rolling at times, but that didn’t even rise to that level You made no attempt to prove him wrong, instead resorting to the devastating “yes it does” and accusing an opponent of being dishonest if he believes otherwise.
I don’t need to prove him wrong, he knows he’s wrong, and so do you. You’re both dishonestly pretending not to know it.
Sadly, Milhose and ahad ha’amoratsim and their ilk love to grant that invader “squatter” status and give him rights to your property … and then to deny you the same rights to take it back in equal fashion. Try that and they’ll throw you in jail for having violated the invader’s right to your property.
We are dealing with some sick people who have a vision of society that is lunatic, at best. They are like French Revolutionaries on acid and crack.
Why did Congress need to pass a statute extending citizenship rights to American Indians if the 14th Amendment had already extended those rights for anyone born in American except children of diplomats?
Because of the “subject to the jurisdiction thereof”. Indian tribes were considered sovereign nations and members of those tribes, while on the land reserved to the tribes, were not subject to the jurisdiction of the US…and therefore were not US citizens.
Currently Indian tribes are not considered fully sovereign but are “domestic dependent nations” and are independent of the authority of the States in which they’re located, but not the Federal government.
A major reason that Indians were granted blanket citizenship in 1924 was so that there was no doubt that they should be counted in the census for purposes of representation as, under the constitution, the census did not include “Indians not taxed”.
Sailorcurt,
Do you acknowledge that the “tribal sovereign nations” predated the arrival of Europeans and “manifest destiny” ?”
To your knowledge, “what” authority decided that the generally respected borders among the “tribal sovereign nations” (i.e., the indigenous peoples prior to the European invasion) needed to be geographically fixed and cartographically documented ? …
“What” authority provided the maps and drew the “required borders” thereon ? …
My recollection of that history is the United States federal government provided the maps and unilaterally decided / drew said delineating borders, then offered the “tribal sovereign nations” “treaties” drafted in English and in compliance with US laws – “treaties” the ‘nations could not refuse”. …
The latter suggests to me perhaps the indigenous peoples of what was then claimed for and today remains the continental lands of the United States were “subject to the jurisdiction thereof” (i.e., the United States).
@SISU:
“The latter suggests to me perhaps the indigenous peoples of what was then claimed for and today remains the continental lands of the United States were “subject to the jurisdiction thereof” (i.e., the United States).”
Those are excellent points. It was a different time with different mores and standards of behavior. I think the government of the time truly believed that they were being magnanimous* by “allowing” the Indians to have some land of their own and pretty much letting them govern themselves according to their own customs…rather than just wiping them out and forcing any survivors to integrate…which would have been the result in earlier times (and was the result of disputes between the various Indian tribes in the millennia before white men arrived).
Even though the government picked out the land, outlined the arbitrary borders of it, and said “stay here or else”, that was technically a result of treaties with sovereign nations, not the government exercising their “jurisdiction” over citizens. At least that was the rationalization.
*The argument could be made that it was more pragmatism than magnanimity…they may just have been trying to avoid several generations of guerilla warfare had they refused the acknowledge the Indian’s sovereignty. I’m sure there were elements of both considerations.
Because “Indians not taxed” were NOT subject to US jurisdiction. They could not be arrested, could not be sued, could not be compelled to testify, and paid no taxes. Just like diplomats.
The term “Indians not taxed” is because Indians had a choice. They could choose to be part of US civilization, pay taxes and comply with the law, and be treated as full citizens. Or they could be citizens of their nations and not subject to our laws. Indians who chose to be taxed were counted in the census and were citizens; Indians who did not so choose were not counted and were not citizens.
In 1924 Congress removed that choice. All Indians became subject to US jurisdiction whether they liked it or not, and therefore became “Taxed Indians” that the constitution says are to be counted and are citizens.
No, they weren’t, because they could not be taxed, prosecuted, sued, or compelled to testify. Their nations were clearly dependent on the USA, but their citizens were not subject to the USA’s jurisdiction.
Take the case of American Samoa. It’s a US possession, so it’s totally dependent on the USA. But it hasn’t been incorporated into the USA, so its people are not subject to US jurisdiction unless they’re physically here, just like any foreigner. And thus they haven’t got birthright citizenship unless they’re born here.
Exactly. Sadly there seems to be a lot of willful ignorance in this discussion.
Why would you need an amendment, when all that is needed is a proper English lesson? Why would a main that prides itself on following the rule of law suddenly decide that a person who commits a criminal act be rewarded with a benefit?
The child has not committed any criminal act, and the constitution very clearly says he’s a citizen. It’s not a “reward”; it’s simply a fact that the 14th amendment’s ratifiers established. Changing it would require an amendment.
“under jurisdiction” … an illegal alien is not under jurisdiction as they are avoiding being recognized. The slaves, from the Emancipation Proclamation and the 13th Amendment, were placed within the jurisdiction of the Federal government.
Additionally, the said child can then petition that their illegal parents to be made citizens. This was not the intent of the 14th amendment.
By your logic a masked criminal who is a 5th generation citizen and flees the crime scene wouldn’t be subject to the jurisdiction of the U.S. either.
Do you realize you just said that illegal aliens can’t be sued, arrested, charged with or convicted of a crime or imprisoned?
There seems to be a lot of wishful thinking on this thread and a lot of reliance on Humpty Dumpty’s dictionary. There’s glory for you!
You missed that it’s an opinion, based on the unwritten punctuation of a speech made by someone who was merely the proxy for a drafter, not even the drafter himself.
Madison in Federalist 41, argued how a single semicolon affected the proper interpretation of the Welfare Clause. Everyone shook their heads sagaciously and agreed with his logic, then proceeded to grow the government rampant over the entire clause anyway. Did Howard speak semicolons, commas, dashes, or what, exactly? We should find out, whereupon we can then proceed to ignore it anyway.
You also missed half a century of Second Amendment-rights-denying legal argument to the proposition that just because one proponent of a bill (whether drafter or non-drafter) explained what the blackletter text was “supposed to mean,” that doesn’t mean that everyone who eventually voted for it agreed with his interpretation — they voted for it for their own reasons or interpretation, which is not on the record. Hence any explanations over and above the text as it is printed are enlightening, but not probative.
Finally, you missed that there is no downside to challenging the current interpretive dogma as it has stood so far, as the worst that could happen is that the court says no, and that’s exactly what we have now, The upside is great relief of a dangerous situation, and a more moral jurisdictional stance than we have now.
Remember… until about 20 years ago it was ‘”settled” conventional wisdom that the Second Amendment wasn’t even an individual right of individual people, just a permit for states to issue government-owned rifles to members of their National Guard on weekends.
There is no Supreme Court precedent on point. The parents of Wong Kim were in the U.S. legally. It’s an open issue and the legislative history of “subject to jurisdiction” is ambiguous, at best.
The problem we have are judges, lawyers and politicians that read something and decide it says what they want it to say then tie it up in court to force meaning on everyone. I don’t think the 14th means you can enter the country illegally, drop a kid and that kid is now a citizen with you getting to stay and get endless welfare but I’m glad Trump did this and will finally force SCOTUS to look at it. Now, President Trump, please annul the “Preemptive pardons” Biden handed out and lets have SCOTUS rule on that one.
SCOTUS will not look at it. The lowest courts will dismiss it out of hand, the appeals courts will refuse to hear any arguments for it, and SCOTUS will not grant cert. And that is what it reserves, because it’s patently, brazenly unconstitutional.
I had higher expectations for a Reagan appointee to actually consider the arguments without resulting to hyperbole.
It’s not hyperbole. The text of the Constitution is clear and unambiguous on birthright citizenship. There is no good faith argument to the contrary.
To state that there is no good faith argument to the contrary is asinine and manifestly untrue.
It’s actually absurd to view the 14th Amendment as a legal mechanism that entices and rewards illegal aliens’ entry into the U.S. for the purpose of having “anchor babies.” That represents a brazen flouting of the rule of law.
On the contrary, it’s the exact truth, and all those who deny it are either ignorant or arguing in bad faith. Mostly the latter.
Since I disagree with you, Milhouse, clearly you are arguing in bad faith and anything you write can be dismissed without consideration.
So you are the final arbiter of truth? You know the hearts and minds of those with whom you disagree and can place moral judgement on their position?
No, you are not and no you cannot. That’s a logical fallacy and a way to avoid having to defend your position with facts and logic “you’re obviously wrong, I don’t have to prove it and if you disagree it’s because you’re either stupid or evil”.
If that’s the best you can do, you’ve already lost the argument.
In this case I do know your hearts and minds, and I know that you’re lying, in exactly the same way that I know that flat earthers and Pastafarians don’t actually believe what they claim to.
There’s glory for you!
I suppose there’s a good faith argument for allowing beating a confession out of a criminal suspect, too. It’s actually absurd to view the 5th Amendment as a legal mechanism that entices and rewards a criminal’s refusal to cooperate with the police.
What did “subject to the jurisdiction of” mean in the 14th Amendment when it was written in the 1800s? That is the argument here.
The meaning of “subject to…etc.” is uniformly understood to at the least exclude diplomatic personal, that is if your daddy and mom are (say) Spanish citizens working at the Spanish embassy you’re a Spanish citizen, not a US one or having joint citizenship.
The question in question is what if the above parents instead merely reside in the USA.
If one or both is a US citizen, the kid is also a US citizen.
Otherwise, comes the murkiness.
US slaves, both before and after being freed, were unquestionably “subject to…”.
Native Americans (and tejanos by implication) are, by conquest “subject to….”, as courts have ruled.
If a (say) Canadian citizen living or even just passing thru the US is arrested by US authorities for murder in the US he can ask to meet with a representative of the Canadian govt after arrest. After sentencing, he can petition to serve his sentence in a Canadian prison. If he’s not in prison, he’s not subject to The Draft, nor can he be tried for Treason against the US. He has rights not available to a regular US citizen, and is notb”subject to…” everything a regular US citizen is. Therefor meaning his status is legally not the same as a regular US citizen. If he’s here illegally, that’s even more so. And if his parents are not regular US citizens with that status, arguably neither is he.
So…..
It’s clear from contempory documentation and practice that the despite any grammatical confusion, the intent was never to allow (say) a rich pregnant Asian country mom to fly into the US – or a poor pregnant central/South American country mom to walk over either – and pop out a US citizen.
If original intent applies at all, any confusion should arguably be in favor of that.
So it’s not as cut and dried as this particular judge pretends.
It meant the same thing it means today. The debates show that. In explaining why tribal Indians were excluded, the sponsor said you could not sue an Indian, and you could not compel his testimony, therefore he was not under our jurisdiction.
You can sue an illegal alien, you can compel his testimony, the government can arrest him, and he has to pay taxes (if he doesn’t he’s committing another crime for which he can be arrested). That makes him under our jurisdiction.
An American citizen living or working in (say) France may be sued in a French court, taxed for French income he’s not already paying US taxes on, arrested by French police, and compelled to testify in court as a witness.
That doesn’t make him a French Citizen.
Mexico and a few other nations are even stricter on their treatment of foreigners and foreign residents, a US citizen, unless he already has joint citizenship, cannot even own Mexican real estate in his own name.
No, it doesn’t (unless French law says it does). But it does make him subject to French jurisdiction, which is the relevant criterion here.
Our constitution, not China’s or France’s but ours, says that any person born in the united states and subject to the jurisdiction thereof is a citizen of the USA and of the state where he lives. If France had a similar law, then children born in France and subject to its jurisdiction would be French citizens.
@BobM: All true, but that argument is inapplicable. First of all, we’re not talking about the citizen being French, we’re talking about any child he may have being French. And even that doesn’t matter, because the national commitment to birthright citizenship that exists in at least some form in the US has no analog in French law.
Under your claim about unambiguous text please point out the precise text that ‘unambiguously’ withholds Citizenship from children of diplomats born in the USA. Mind you we want the exact phrase, no inferences, no ‘gotta dig deeper’, point to the language that directly spells out that exclusion.
Next please explain why the nearly exact same clause ‘subject to the jurisdiction.. (of the USA), in 14A doesn’t mean the same thing as the language in the Civil Rights Act of 1866:
‘…All persons born in the USA, and not subject to any foreign power….are Citizens of the USA’.
The dilemma you face is the fact that no direct case law exists to inform what ‘subject to the jurisdiction’ actually means. The oft cited Wong case doesn’t fit b/c he was born to parents who were lawfully present in the USA as resident aliens aka what we now class as having been issued a ‘green card.
Just b/c the issue hasn’t been fully litigated and common PRACTICE as opposed to actually binding PRECEDENT has been a more generous interpretation of 14A on ‘birthright Citizenship’ doesn’t magically make it correct.
What may be clear and un-ambiguous to one judge is unclear and ambiguous to another otherwise supreme court decisions would always be unanimous.
Not only that, there are several justices on the court for whom the concept of clear and un-ambiguous does not factor into their decisions.
Or there are judges who don’t like what the laws says and proceed to do as they please.
x.com/laralogan/status/1881879561010589725?s=12
And this person who posted that is not just a liar but a stupid liar, because anyone can read the text and see that it says the opposite of what she claims.
Mr Howard very clearly said that the ONLY exceptions were the children born to “embassadors” and foreign ministers. No other exceptions. Any child born to foreigners who are NOT diplomats is included and is a citizen. That was his view, and anyone claiming he had a different view is a liar.
To what extent is a baby, born to a Chinese tourist (here legally), subject to the jurisdiction of China? Couldn’t she put the baby up for adoption in the US and return to China? Wouldn’t that baby then be a US citizen? How does that differ from an illegal who crawls under the border fence to drop her baby? There are a lot of things to consider as this is litigated.
The language used ‘subject to the jurisdiction’ in legislative debate clearly meant to exclude aliens, temporary visitors and others whose allegiance was to another Nation. Arguing that an illegal alien is ‘subject to the jurisdiction’ in the same way as a native born Citizen fails b/c it is about civic duty (jury service, military conscription and the like) not just an abstract potential for criminal prosecution.
If folks want to argue that at time of passage the those approving the 14A wanted to include ‘tourism births’ as concerning Citizenship… make your affirmative case from the historical and legislative record…if you can.
CommoChief – You might be right, or not. All I am saying is there are a lot of things that SCOTUS must consider if they actually take this case. They may not take it if all the lower court decisions are like this one.
SCOTUS is definitely gonna take the case when the Appeal of this comes up. They will take the opportunity to decide the question one way or the other. Whether the votes of enough originalists exist is debatable.
Assuming SCOTUS more/less punts or rules against the Trump Admin (safe bet IMO) due to the long-standing manner this has been previously applied (which I again emphasize is not the same as precedent) that isn’t the end all/be all.
At that point Congress can exercise the power granted under Section V of 14A which provides that:
‘The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.’
No Constitutional amendment needed to implement clarifying language about whom in particular the clause ‘subject to the jurisdiction’ encompasses. Simple majority though the d/prog will attempt to filibuster so the GoP should make them do a.speaking filibuster as long as.the d/prog octogenarian Senators can maintain it, then proceed to a vote.
You propose an edge case that is so ridiculous as to be moot. The value of an anchor baby is to use the baby to exercise rights and entitlements not available to the parents. Giving up the baby for adoption destroys that value entirely. No one would engage in such a meaningless exercise, as there is no benefit to them from doing it. Whatever citizenship an abandoned child accrues would then derive explicitly from its adoptive parents.
Easy. “Subject to the jurisdiction”. That means exactly what it says. The meaning of the words today is clear and undisputed. If you can arrest someone, they’re subject to your jurisdiction. If they can shoot someone on 5th Avenue in broad daylight and not be arrested, they’re not. If they can be sued in your courts, they’re under your jurisdiction; if they can’t they aren’t.
Because it’s different language. If the framers and adopters of the amendment meant the same thing they would have used the same words.
Dual citizens (e.g. a child born here to both a US and a foreign parent) are subject to foreign powers, but no one disputes that they’re subject to US jurisdiction. They would not have been citizens under the 1866 act, but they are under the 14th amendment.
LOL.
The FBI arrests foreigners in foreign lands. That was the whole thing with Barky forcing them to Mirandize Afghan jihadis in Afghanistan.
You are such a disingenuous, lying POS. You have serious problems.
The FBI cannot arrest anyone outside the USA without the host government’s permission.
That means foreigners in foreign countries are not subject to US jurisdiction.
First of all, that’s untrue.
Secondly, an arrest is an arrest. You said “arrest” and now you admit “arrest”, even though you are lying about what we can or cannot do. The US can do any damn thing we want outside of American territory. By your definition, everyone on Earth is “subject to the jurisdiction thereof” of the US government. Gitmo is full of such people, just to cite one little example.
You are arguing against yourself. You like to make things up and claim that they are facts, but you know that you are just making up what you wish to be true. And then, when confronted with counter-examples to your loony notions you lie and try to move the goalposts. Typical.
Milhouse,
You are.arguing from a 2025 perspective. Dual Citizenship wasn’t on the radar in the aftermath of the Civil War.
If a diplomat walks up to someone and shoots them in front of a LEO that person will be detained and arrested. The immunity will come later. Perhaps not at all; when LEO says show me your hands and the diplomat refuses and suddenly reaches into their back pocket for a diplomatic passport they are likely to be shot by LEO.
IMO the term ‘jurisdiction’ refers to civic duties and responsibility like jury duty, or ‘patriotic duty’ service in the militia or the Sheriff calling out the ‘Posse’. IOW to what Nation does the individual in question owe their loyalty/allegiance.
Make the affirmative case that in the context of post civil.war era, and preceding passage of Civil Rights Act of 1866 and the Synder Act in 1924 granting ‘Indians’ Citizenship and the legislative record that the ‘subject to jurisdiction’ was intended and understood at passage to include offspring of illegal alien Parents and/or temporary visitor Parents.
Then apply the logic used and now required in the analysis by Bruen. No way you can make a convincing case under all those conditions.
Do I think SCOTUS will agree with me? Nope. Four votes is the probable max.
That’s OK. Congress can always revisit it under the authority granted in Section V to clarify how it should be enforced.
Commochief, dual citizenship absolutely was on the radar in the 1860s. Dual citizenship has been a reality the US has had to contend with for its entire existence. People are dual citizens, and there’s nothing the US can do about it even if it wanted to.
Jurisdiction meant then exactly what it means now. And there is no possible argument that a non-diplomat who is present in the USA is not under its jurisdiction. If you can be arrested you are under the jurisdiction. If you have to appear in court when summoned you are under the jurisdiction.
If a diplomat shoots someone in front of a cop, and the cop knows he’s a diplomat, he can not arrest him. Immunity doesn’t come later, it comes right there and then. The cop cannot touch him, and if he does he will be in deep shit. He has no choice but to let the guy walk away, and file a report. If he has to shoot the guy in self-defense, there will be a major diplomatic incident, and while the cop will not face criminal charges or discipline, he will have to deal with a shitload of paperwork and hassle. If there is any doubt about whether he really had to shoot, the foreign country will demand criminal charges, and the state department will insist on it.
The Snyder Act abolished the category of Indians who were NOT under US jurisdiction, in any way. They were NOT like tourists or illegal aliens. They were like diplomats. Completely immune from US law. And that’s why they were not citizens. If they chose to come under US jurisdiction they were citizens, and were counted in the census. That’s what the Snyder act abolished.
The 1866 Act is irrelevant because it didn’t use the term “under the jurisdiction”, and of course it was not an enforcement of the 14A because that did not yet exist. The 14a, when it was ratified, overrode and made obsolete the definition of citizenship in the 1866 Act.
Bruen is irrelevant. It’s about the 2A, not the 14A. All it says is that while we know that some gun restrictions don’t infringe the RKBA, we have lost the knowledge of which ones do, so the only way we can find these exceptions is to look at what kind of restrictions people found acceptable back when they took the 2A seriously. If people in 1790 thought a particular restriction was not an infringement, then it’s probably not an infringement. That’s not relevant here. The only relevant term here is “jurisdiction”, and we know that it meant in 1868 exactly what it means now.
Finally, Congress can NOT use its power under 14A § 5 to override a court decision interpreting the amendment. § 5 does not give Congress any power to interpret the law; it only gives it power to implement the law as the courts have interpreted it.
The bad faith argument is that there is a right for illegal aliens – and only illegal aliens – to have birthright citizenship bestowed upon them by the Constitution.
Children born here are not illegal aliens. The whole point of the 14th amendment is that it doesn’t matter who their parents are. It’s not the parents who must be subject to US jurisdiction, it’s the child. The amendment doesn’t even mention the parents.
LOL and you purport to be a lawyer. Every word is subject to interpretation.
There’s no such thing as clear and unambiguous.
That is not true.
So Bill Clinton was right when he said it depends what “is” is? I don’t think so.
Actually he was right. At the time he said that his relationship with Lewinsky was over, so he could truthfully say that “there is no relationship”. There was one, but there isn’t any more. Definitions matter.
It’s the same when he was questioned about whether he had sex with Lewinsky, and his lawyers asked for a definition of “sex”. The lawyers and the judge argued it out, put the definition in writing and gave it to him, he read and understood it, and was then asked, given that definition, did he have sex with Lewinsky. He lied and said he hadn’t, and that was the perjury for which he was impeached.
He’s lived in Seattle for a while ..it’s in the water (and the air and the soil)
There is nothing whatsoever written in the Constitution that allows children born in the US of illegal aliens to automatically become citizens, but this judge used his Super-Secret Magic Glasses (TM) and – wonder of wonders! – there it is!
Meanwhile, judges keep ignoring the unambiguous “the right to keep and bear arms shall not be in fringed” and rubber-stamp all manner of unconstitutional gun control attempts.
Nothing except the unambiguous first sentence of the 14th amendment. Note the absence of any words requiring that the mother be lawfully in the U.S. at the time of birth.
That’s not the argument being made sock puppet.
Who are you calling sock puppet, fool? And what law school did you attend?
The dumb ass that just responded to being called a sock puppet
You are serious calling ahad haamoratsim, a long-time commenter here, a sock puppet?! Whose sock puppet do you claim he is, and how long do you think that person has been running him?
It certainly does with the line “Subject to the jurisdiction” meaning a law-abiding citizen which no illegal would be.
That is not what it means, and NOBODY, including you, honestly thinks that’s what it means. It’s not how you would interpret it in any other context.
And now you’re reduced to telling people what they believe?
Pathetic.
That’s right. Neither inspectorrudy nor you believe for one minute that criminals and aliens are not under the jurisdiction of the state they’re in. If that were the case then no criminal could ever be brought to justice. The prisons would have to be emptied. And all aliens could commit crimes with impunity. You don’t believe that, and therefore you are lying when you claim you do.
So Richard Speck’s children would not be citizens? William Douglas’ law clerks would be proud of you.
Baloney. You are deliberately ignoring Article 5 of the 14th Amendment which says “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress has already done that starting with the Civil Rights Act of 1866:
Parents who are illegal aliens are still citizens of the country where they came from, not US citizens. Giving birth to a baby on US soil does not change that fact. Nor does it give the parents the right to stay. If you want to deport the parents and let the baby stay – well, good luck with that! But no more using children as a tool to evade the law.
No Act of 1866 could possibly be enforcing an amendment made in 1868. The citizenship clause in the 14th amendment overrides and nullifies the provisions of the 1866 act.
No lawless liberal judge could come up with a more lawless argument.
Ok, let’s play this by your own limit to the 1st sentence; note the absence of any words specifically denying that the US born children of foreign diplomats are automatically US Citizens. Yet in reality they don’t automatically become US Citizens.
“And subject to the jurisdiction thereof”.
Like Indians Not Taxed (which was a thing at the time) diplomats can’t be sued, arrested, compelled to testify, or taxed. More to the point, nor can their children. Diplomatic immunity covers the whole family.
Look back to Blackstone’s explanation of “natural born subject”. He says that children born abroad to “the king’s embassadors” are nonetheless the king’s natural born subjects, because it was his laws, not those of the host country, that protected them at birth.
Whose laws protect a child born to parents here illegally? Whose laws prevent anyone from strangling the child at birth? Whose police would arrest anyone who did so, whose courts would try the murderer, and under whose laws would the trial be held? Thus Blackstone would say the child is not only a citizen but a natural born one.
Nah, the limitation was to find that within the first sentence.
ahad made the same restriction in response so I invited him (by extension you or others) to show us in the FIRST sentence of 14A the clarification about the offspring of diplomats.
Feel free to try again but you gotta stick to the FIRST sentence.
If I recall correctly Blackstone is also gonna tell you that they are ‘denizens’ occupying a middle ground between Natural Citizens and temporary aliens.
Blackstone would also require taking the Lord’s Sacrament as a condition of Naturalization aka communion in which the applicant must also take oaths to include ‘test acts’. Strange you should demand that.
Now if you want to use Blackstone’s arguments about immigration, natural born and so on then I’m gonna insist you include and apply ALL of them when making your case. Gonna be a tough road ahead for non Protestant or even non Anglican protestants if we apply Blackstone comprehensively.
That IS in the 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.”
Diplomats and their families, including their newborn children, are not subject to the jurisdiction of any of the united states. That is exactly what you asked for.
No, Blackstone does not consider diplomats and their families to be “denizens”. He says explicitly that they owe the host sovereign no allegiance at all, neither “natural” nor “local”.
He says a “denizen” is someone whom the king has made an English subject, but Parliament has not naturalized. Naturalization, at the time, could only be done by act of Parliament. And yes, to become a naturalized English subject at the time you had to be an Anglican. That’s not an inherent part of the concept of naturalization, it’s a specific aspect of English law at the time. And obviously one that the USA did not adopt.
Notice the absence of any words at all about the parents. The parents are irrelevant. If the child is born here and is subject to our laws it’s a citizen.
The subject to jurisdiction clause isn’t limited to potential criminal prosecution. It encompasses the civic and patriotic duties/responsibilities such as Jury Service, Militia Service, potential conscription into Federal forces, being called out as a method the Sheriff’s Posse.
IOW it is about unequivocal allegiance to the USA v allegiance to a foreign power or that foreign power making a claim upon the individual for continued allegiance.
That’s the most straightforward way to view it IMO. Again you and probably SCOTUS will disagree.
No worries. Congress can simply issue clarifying language under the authority granted under Sec V of 14A. Which I would point out they have.done many times in the past…to include retroactively granting not just Citizenship but ‘natural born’ status to PR territorial residents.
No whining of they go the opposite direction.
No, it doesn’t.
Again, if someone is NOT under US jurisdiction, then they can’t be arrested. They can’t be sued. They can’t be taxed. They’re immune. Anyone who is not immune must be under the jurisdiction.
Oh, and by the way, when the USA had conscription, aliens were subject to it. And even today when no one is conscripted, aliens can and do serve in the US military. I don’t know where people get the idea that military service is one of the duties of citizenship, which an alien can avoid by not becoming a citizen.
No worries. Congress can simply issue clarifying language under the authority granted under Sec V of 14A. No, it can’t.
No, they haven’t done that. PR citizenship was not granted by reinterpreting the 14A. It’s a statutory grant. Puerto Ricans are not 14A citizens, they’re citizens because Congress said so. Congress can grant citizenship to people not automatically entitled to it by the 14A. It might even be able to take citizenship away from those people; I’m not sure about that. But it can’t take citizenship away from anyone who is a 14A citizen. And that includes anyone who is born in the USA and is under US jurisdiction.
“but this judge used his Super-Secret Magic Glasses (TM)”
Joseph Smith smiles down upon you.
What is the solution when our nation is tossed about like a ship in the storm? Anchor babies!
This judge needs to be impeached and removed from the bench. This is INSANE. The judge might disagree with Trump’s interpretation of “subject to the jurisdiction thereof” but that needs to be decided in a court. There is nothing “blatantly un-Constitutional” about this order. In fact, it is perfectly in line with what the actual author of the 14th amendment thought, as opposed to the idiocy the judge thinks passes for “legal reasoning”.
Judges like this are a major, major problem and must be dealt with. They are a cancer on the United States.
The judge is absolutely right, and you are absolutely wrong. No competent lawyer could honestly argue that the order is constitutional.
You are a moron. You are trying to bully people with your idiocy. You claimed, stupidly, that the ability of the US governemnt to arrest someone makes them “subject to the jurisdiction, thereof” but the US government arrests foreigners in foreign lands. And aside from that, the possibility of being arrested means NOTHING.
An illegal alien is not even known to the US government. You and your leftist co-religionists (yes, you are clearly a leftist shill) like to talk about them as “undocumented”. Well, how the hell can you know who someone is if they are “undocumented”.
If someone cannot be liable for Treason then he is not “subject to the jurisdiction of”. Illegal aliens and tourists and people who step onto American soil are not “subject to the jurisdiction of” and their children born here are citizens of their home countries, not America.
Are you an illegal alien, or something. Because you argue as if you are. Of course, you also argued as if you were a tr@nnie. Are you a tr@nnie illegal, Milhouse??
And you are a nazi mass-murderer support of hamas. That accusation has as much truth as your insane and dishonest rantings and accusations.
LOL. Very clever, there Milhose.
Did I strike a nerve? Is there something (or a few things) you want to tell everyone?
Excellent job at not bothering to address the idea that we don’t even really know who the illegals are, save what they lie about to us, and you are considering these unknown people to be “subject to the jurisdiction thereof”.
You are so full of sh*t … but you knew that. Everyone knows that.
Everyone who is in the USA and does not have diplomatic immunity is subject to US jurisdiction. We don’t need to know someone’s real name to arrest them if they commit a crime, or to tax them, or to sue them.
You know you have hit a deep state nerve when the sock puppets start showing up to tut-tut we rubes.
Whom in this thread are you accusing of being a sock puppet, and whose?
I think it’s clear if you read the available texts from when the Amendment was being debated in both the House & Senate, the people who wrote and adopted the Amendment had ZERO intention of extending citizenship to children born in America to foreign nationals. The phrase ‘subject to the jurisdiction’ was thoroughly debated. With respect to that specific phrase, the principal author of the Amendment, John Bingham, said this:
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
If you’re a citizen of a foreign country, that is who you owe your allegiance to. Unfortunately, the morons of the Supreme Court who wrote the majority opinion in United States v. Wong Kim Ark (1898) – which ignored two prior opinions on the topic – largely ignored the intent of the legislators who wrote and ratified the Amendment. I’m skeptical there are five votes to restore the original intent of the 14th Amendment. Roberts simply isn’t going to be party to a decision that would (in his mind) cause so much calamity and bring scorn upon the Court. And, ACB is part of a charismatic Catholic movement that has a core mission of enabling foreign immigration to America, something that was largely ignored by conservatives when she was being confirmed. But, anyone familiar with People of Praise understands that on immigration, they’re WAY to the left of the Jesuits and other WOKE Catholic orders.
The only good news about Ark is while it’s not part of the central holding of the case, throughout the majority opinion, the author makes it clear that Ark’s parents were permanent LAWFUL residents. If Roberts wanted to hang his hat someplace, that’s where he could hang it.
As I suggested earlier, Roberts could even decide that those lawfully here “temporarily”, waiting many years for their hearings, is a disctinction without a difference and are subject to USA jurisdiction. IMO ACB will end up being, in fact, a pretty good replacement for RBG, from the liberals point of view.
I suspect this is correct. The best possible outcome is that the Court holds that the children of ‘gotaways’ and visa-overstayers aren’t eligible for citizenship because their parents aren’t in the country legally. But, for all the people admitted through the amnesty program, I don’t think there’s even the smallest chance the Court would forbid their citizenship claims (for their children). The court is compromised of three ultra-progressives, two reliable conservatives, two pragmatists, a libertarian and ACB, whatever she is. That’s not a favorable audience, for this argument unfortunately.
That is the current makeup of the court. However, by the time this makes it to USSC that makeup could have changed. Depending on if Republicans don’t step on their own dingus we may have 6 or more years in power.
I think the term “lawfully” is a great place to take it, as in “Lawfully in the United States.”
Yes, too bad that word doesn’t appear in the 14th Amendment.
It appears MANY times throughout the King Wong Ark decision.
Wong Kim Ark
So what? It doesn’t appear in the 14A.
Bingham’s statement is irrelevant. That’s not how anyone else understood it — including Howard, who introduced it in the senate and is quoted in this post. A law means what its text means to the general public at the time it’s enacted, and it’s clear from the debates that the phrase meant at the time the same thing it means now. For instance look at the arguments made against it by those who voted against it; their understanding is just as important as its supporters’. There was one senator who voted against it because he correctly understood that it would recognize Gypsies’ children as citizens.
The musings on 14A from the man who literally wrote the Amendment are ‘irrelevant?’ Hysterical. This is what Sen. Howard said in the Senate on the day he introduced the Amendment.
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, 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 citizen.
Sen. Howard, his introductory remarks on 14A in the US Senate, May 30, 1898.
Later in the debate, Sen Reverdy Johnson offered this, expanding and further clarifying the earlier remarks by Johnson…
“Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States”
Read it again, all of it this time: “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 citizen.”
Howard explicitly said there that diplomats and their families are the only exception. Aliens who are not diplomats or their families would not be excepted.
(There were no invading armies at the time, so he wasn’t thinking of them, but they are also an exception for the same reason as diplomats.)
The President’s/DoJ analysis may be correct — but arguing that the 1898 Wong Kim Ark case excludes anchor babies is going to be a major lift for any good lawyer arguing in court. We have 125 years of Ark establishing that anyone born in the U.S. is a citizen.
I agree with the underlying idea of what the president is doing; we should indeed reconsider birthright citizenship and define better what it means to be subject to U.S. jurisdiction. But I don’t think an EO will stand. We’re going to need a new constitutional amendment that better defines citizenship. In the end, that would be a good thing and will last far longer than any EO.
We don’t need an amendment. We simply need judges and legislators who a) know how to read and b) know how to think logically.
Well, there are people who disagree with you. Either —
a) you fold
b) you somehow fight to get the EO approved through the USSC, and wait for the next Democratic president to un-do with the stroke of a pen
c) you do the heavy lifting with a law and/or a constitutional amendment that is durable
After all, the Wong Kim Ark decision has stood 125 years. That’s pretty durable. An EO likely won’t last nearly that long.
You want judges to be sensible — they need to be told, exactly, what the law is. The more wiggle room you give them, the more they’ll take (and then some).
We have a 2nd Amendment that clearly says “the right to keep and bear arms shall not be infringed”, yet governors, legislators judges at all levels routinely ignore it and do whatever they please.
Pass an amendment if you like. Pass a dozen of them if you can. None of it will make the slightest bit of difference to those who are determined to do as they please.
Simply because Wong Kim Ark stood for 125 years does not mean it is right. The 14th Amendment, as properly interpreted, never extended citizenship to children born to illegal aliens. It makes completely foul the rule of law, which is supposed to be the bedrock of this nation.
An amendment or law is not needed; what is needed are men who have moral fortitude and have a good understanding of the English language.
Wong isn’t ‘on point’. In that case he was born in the USA to Parents who were lawfully present as what we would characterize today as permanent resident aliens aka ‘green card’.
Therefore then as now he and anyone else in the same circumstance would be born as a US Citizen.
IMO the key distinctions required are ‘permanence’ on the part of the Parents not just legal presence as.well as civil/civic duty performance; ability to serve on jury, subject to orders as part of unorganized militia. IOW they or at least one gotta be a lawful permanent resident alien. Not a tourist, not on a work visa both of which are temporary….just as being present as an illegal alien is a temporary status b/c they can be deported upon discovery/arrest.
CommoChief, I’d agree a fair bit with that analysis. “Subject to the jurisdiction” should mean, at the very least, that one is compliant with and to the lawful orders of the U.S. An illegal alien is here — get this — illegally. Can’t make that person a citizen.
But the anchor baby is NOT here illegally, and that’s one of the points of Wong — even if his parents were here illegally (they weren’t, and you’re right about the circumstances), Wong himself was born in the U.S., and that’s the point the USSC emphasized.
Steve,
No. “Subject to” doesn’t mean “compliant with”. It means required to comply with. Every criminal is out of compliance with the laws; that’s what makes them a criminal. But if they were not subject to the laws they wouldn’t have to comply, and couldn’t be punished for not complying. The very fact that an illegal alien can be arrested, hauled into court, and deported for being here illegally means that he is subject to the USA’s jurisdiction. People not subject to USA jurisdiction can’t have that happen to them.
I don’t think the plan was ever for the EO to stand. I think the plan was to get something moving and that is what it has done.
Wong didn’t establish any such thing. If it did what you claim that anyone born in the US was automatically a Citizen then why did Congress in 1924 pass the Snyder Act (aka Indian Citizenship Act) thay granted US Citizenship to members of Tribes which were held to be excluded by the ‘subject to the jurisdiction of’ clause b/c the Tribes were themselves ‘Sovereign’.
That was just 26 years after Wong.
Because until then there were Indians who, by their own choice, were NOT subject to our jurisdiction. They couldn’t be arrested or sued. They couldn’t be taxed. They couldn’t be compelled to testify. So any Indian who opted to be “not taxed” was not a citizen.
Note that it’s the Indian himself who’s defined as not a citizen; not his children. If his children decided as adults to be taxed then they were automatically citizens, even if they hadn’t been citizens at birth. They were (a) born here and (b) subject (by their choice) to the jurisdiction. That their parents chose to remain outside the jurisdiction was irrelevant.
All that ended in 1924, when Indians lost the option of not being subject to the jurisdiction.
“We have 125 years of Ark establishing that anyone born in the U.S. is a citizen.”
Don’t be cowed by this. The recent Court has been iconoclastic.
Heller. McDonald. Dobbs.
SCOTUS didn’t hear its first First Amendment case until something like 1920 (I’m not at my computer archives, but the date is ridiculously recent for a bedrock right).
Oh yeah, lest I forget Bruen… where this SCOTUS told lower judges, “Screw all your fancy constructed interpretations and your local precedents and your legal games… from here on in, if you can’t show us that the founders prohibited the practices you want to prohibit, you lose.”
Seriously, the momentum is with this court, as unbalanced as it is.
Or something similar, as the court went on to point out in Rahimi.
A precedent from the late 18th century proves that the law in question was understood at the time not to infringe the RKBA. The lack of such a precedent doesn’t prove the reverse; it merely means that we don’t know whether it would have been understood that way, so we should err on the side of caution.
I agree with you completely. Apparently that means I am a sock puppet and, like Millhouse, either an unlawful alien or the child of one.
This judge has just flunked legal writing 101.
The judge has conclusionary statements with citations to various cases.
The judge fails to discuss 14th Amendment legislative history, text of the 14 Amendment, discuss the facts of cases cited, or provide any actual legal analysis supporting the court’s holding.
There is nothing to discuss. The meaning is obvious and clear, and no competent lawyer can honestly say he believes otherwise. Anyone who does is either ignorant or arguing in bad faith.
Who was it that said never review the text of the law unless the legislative history is inconclusive?
Interesting article from Tom Woods on this subject.
https://mailchi.mp/tomwoods/birthright?e=503752da56
From the comments I believe this will roll around among the courts for a long time before it ever gets to the SC. I can see John Roberts hiding behind a door.
Yea Roberts is to big of a Ussy to make the right choice.
There are lots of possibilities and complications that have to be considered if SCOTUS ever hears this case. I don’t think anyone has exhaustively considered them, here or elsewhere. Even if you have a bright line rule that children born to women here illegally are not automatically citizens, what if she does not want to keep the baby, but puts it up for adoption? What about a Chinese prostitute who has twins, one from a foreign customer and one from a US hookup? Is one a citizen and the other not? Does it matter if the foreign mother leaves with her babies or gives them away here? The simplest resolution is to keep it like it is – automatic birthright citizenship. Otherwise the Court and Congress will have to consider all kinds of contingencies that will eventually arise.
No they don’t have to consider contingencies. You just make the rule. In the example of not wanting to keep the child, well tough, the child is going home with you, period. In the case of the hooker, even if I entertain the vanishingly small chance that a woman has “twins” form to different fathers, first there would need to be proof that the child from the “american father” was actually from a citizen. Good luck with getting the guy to come forward and take responsibility. People who want responsibility don’t engage hookers. So the answer is…….drum roll…….the kid goes home with you and is your problem. America didn’t get them pregnant why should america pay?
No, we don’t have to subject an entire country to laws written for edge cases, any more than we have to allow the mentally ill free rein because a handful of people are occasionally born hermaphoditic
Huh??
You read it. It’s in plain English. And it’s something that can happen, however rarely.
Yeah … one in a billion … so let’s use it to argue about a law, even though it doesn’t even present any sort of a major issue.
What about a CHinese prostitute who gives birth to Siamese twins on the Texas border, with one half being in Mexico and the other half in America the moment they are born …
Give me a break with the idiotic hypotheticals that don’t even pose any problem, save the need for a court case analyzing them if anyone even cared to bother with it.
Only unserious people use crap like this to argue about law.
“plain English” … it’s plain stupid.
How does a State(s) have standing as no state has any power in determining US citizenship?
They don’t – and the judge knew that.
Isn’t that bad then, as SCOTUS could merely decline the case for that reason?
If they decline the case for that reason, Trump’s EO stands.
MarkS, see the decision embedded in the post.
The order harms the plaintiff states directly by forcing state agencies to lose federal funding and incur substantial costs to provide essential and legally required medical care and social services to resident children subject to the order. Plaintiff states’ residents are also irreparably harmed by depriving them of their constitutional right to citizenship and all the associated rights and benefits, including subjecting them to risk of deportation and family separation, depriving them of access to federal funding for medical care and eligibility for basic public benefits that prevent child poverty and promote child health, and impacting their education, employment, and health.
Here’s a link to The American Mind, author John Eastman (yes, that John Eastman) https://americanmind.org/salvo/birthright-citizenship-game-on/.
This issue has been debated for years but until now not given an opportunity for litigation. This judge’s brain is in his knee.
I was born in The Bronx, NY and have not reliquished my U.S. citizenship nor have I ever applied for “dual citizenhip”; I even managed to pass Freshman English and graduate from an Ivy League University. I am not a lawyer.
I fully comprehend/understand the Citizenship Clause up to the semicolon after which the text employs the word “person” as distinguished from the word “citizen” which is defined in the first sentence of this clause.
I’d gratefully appreciate any help offered in explanation of why the word “citizen” rather than “person” is not employed in the remainder of the sentence following the semicolon.
To my mind the use of the word person is more inclusive and could apply to anyone not a citizen momentarily transitting even a small corner of the state.
Because before the 14th, there was no such animal as a “citizen of the United States.” People considered themselves citizens of states, and the federal government was still a federal government, not a national government — it didn’t have citizens, it had members, and those members were states. The 14th converted the federal government into a national government. But for those states wanting to cleave to the older convention, the 14th was written to assure that states did not oppress PERSONS who they did not wish to consider CITIZENS of their state, because now they were citizens of the US.
TNX
Because the privileges and immunities clause applies only to citizens, but the due process and equal protection clauses apply to all persons, not just citizens. And yes, that means even those momentarily transiting a state, and it includes those here illegally. As soon as an alien sets foot in the USA they are protected by the due process and equal protection clauses.
Absolutely!! AN invading army must be given due process and equal protection as their Constitutional rights for invading American territory. Therefore, any American who shoots at an invading soldier is violating his Constitutional rights and must be immediately arrested and tried. The invading soldier can then sue the American (who was illegally trying to defend American territory) and be given everything the American has. We all know that this actually happened, at least once, in Texas with illegals being held by Americans for border patrol – when some judge (related to Milhose, no doubt) awarded the illegal invaders the American’s border ranch.
Milhose, you are nuts and you make infantile arguments that, obviously, you haven’t really sat down and thought about for more than 25 seconds.
Yes, members of an invading army are entitled to due process and equal protection. Being shot does not violate either of those; it’s a legitimate act of war. War and the criminal justice system are two completely different things; that is why prisoners of war (once it is established that that is what they are) have no right to habeas corpus.
Even Bombediene or however you spell it didn’t change that; all it said was that an alleged POW has the limited right of habeas to claim that he isn’t a POW, and make the government prove that he is. Once it does that the proceeding is over, and it doesn’t have to justify holding him.
That’s not possible, because the amendment explicitly made those persons citizens of the state in which they resided. The state no longer had any choice in the matter. The constitution tells the state this person is your citizens whether you like it or not. So the switch to “persons” was not needed to cover them. It was done because the last two clauses apply to everyone, not just citizens.
TNX
Allowing anchor babies to override US law and the 14th Amendment and permit illegal aliens to stay is like committing a theft or fraud and telling the judge, “You cannot punish me! I have a baby!”
No one says the parents have to be allowed to stay. They can leave the baby with relatives or friends, or they can take it with them. The baby will remain a citizen; the parents will not be. When such babies turn 18 and move back to the USA, they can apply to have their parents join them. The application does not have to be approved.
Being a foreign visitor to America is not sufficient to establish being subject to U.S jurisdiction under the 14th Amendment. Certainly an illegal trespasser has not established such jurisdiction. If my wife and I travel to China as tourists, and my wife gives birth while visiting China, our child is an American citizen, not Chinese. Ditto if she gives birth in Mexico or any other country. In the case of slaves and American Indians, they were certainly not tourists or trespassers. They were long established in America and had been recognized as subject to U.S. jurisdiction.
It certainly is. If it weren’t then tourists could break the law with impunity, not pay their hotel bills, and claim exemption from all taxes, just like diplomats.
The child is a US citizen by statute, not by right of the 14th amendment. Congress could change that statute.
But it’s up to Chinese law whether the baby is also a Chinese citizen. Under current Chinese law it isn’t, but if China had the same 14th amendment as we do then the baby would be a Chinese citizen as well as a US one.
The 14th clause “subject to” is not referring to merely being subject to the local prevailing law, as any visitor might be. It is referring to individuals who have established themselves as legal residents of a state, and shown “allegiance thereto”. by surrendering themselves to be “subject to” and having renounced any other foreign allegiances. ((see, Constitution of the United States, 14th Amendment, and Elk vs. Wilkins (1884)).
No, it does not mean anything of the kind.
Elk was about someone who at birth was definitely not under the jurisdiction of the USA. He claimed that merely by leaving his tribe and submitting himself to US jurisdiction he could automatically become a citizen; the court held that was not enough, and he had to be naturalized, like any alien who immigrates and wants to become a citizen. It has no relevance to children who are born under US jurisdiction.
Under what legal theory do the states have standing to sue? I thought you had had to suffer some damages to sue.
See the decision embedded in the post.
“I’ve been on the bench for over four decades”
Well there is the first problem
When it comes to the mischief and absurdity that can result from accepting the 14th as conferring automatic citizenship, imagine a Chinese couple who visits America only long enough to give birth to a child. Then they return to China. China considers the child to be a Chinese citizen. America considers the child to be an American citizen. Does the 14th confer dual citizenship? Which prevails? When the family returns to China are they American expats, or Chinese repats. If repats, no longer subject to the jurisdiction of the U.S., does the citizenship stand. Gets ridiculous.
I believe that citizenship of one born abroad of American parents is statutory. Fifty years ago, as a summer intern in the U.S. Attorneys office in NJ, I worked on a 3d Circuit brief opposing a citizenship claim of a man born in Argentina to one American citizen parent and one non-citizen parent. The statute at that time precluded citizenship if the American parent had lived outside the US for a period of, say, 10 years before the child’s birth. If memory serves, the statute was upheld on the appeal. It was a test case brought by the firm of radical lawyer Leonard Boudin. Coincidentally, my supervisor that summer was Maryanne Trump.
Yes. Congress can change that statute, and has done so several times. It can’t change the 14th amendment.
Yes. The child is a Chinese citizen because that’s what Chinese law says. The child is also a US citizen because that’s what the US constitution says. The child can return to the USA as an adult, live here for 14 years, turn 35, and then run for president.
That is a sound reason for changing the law. It is not a justification for ignoring the law or pretending that the law means something other than what it says.
No, I don’t think one can. Not honestly, anyway. Your reading is the only possible one.
But even if it weren’t the only possible reading, it wouldn’t matter, because the drafter’s intent is irrelevant in interpreting a law. The drafter didn’t make the law, the legislature did. In the case of a constitutional amendment, dozens of legislatures did. So even if intent mattered we would have to determine the intents of every single legislator who voted for it, in all those states.
But it goes even further: Even if we could determine that, legislators’ intent doesn’t matter either. A law means what its text says. Even if every legislator who voted it were to testify that they meant something else, it doesn’t matter. Laws don’t and can’t depend on information that isn’t in them. A law has to mean what it means to an ordinary member of the public who reads it. But it has to be a member of the public at the time it became law, not someone 100 years later.
A law, any law, means what it meant to the public at the time it was enacted. And the public has nothing to go on but the text and the English language at the time.
And the language here is clear, regardless of anything said in any of the dozens of debates in both houses of congress and in each of the state legislatures. The meaning of “jurisdiction” hasn’t changed. A person is under a state’s jurisdiction if the state can arrest him for an offense, if its courts can compel his attendance, if he can be sued in its courts, and if he has to pay taxes to it. Diplomats and their families are not subject to any of that; therefore they’re not under their host state’s jurisdiction. Anyone who can be arrested, sued, summoned to court, and taxed, is under their state’s jurisdiction. End of story.
I would have threatened to sanction him and recommend him for disbarment unless he withdrew his answer.
I’m not as familiar with the (no longer) new Rules of Professional Conduct. But it certainly would have violated one or more DR’s under the old Code of Professional Responsibility.
I really love how all the idiots on this thread, like Milhose, and the judge are actually trying to argue that the 14th amendment states taht an invading army can come with their families and every kid the invaders have on American territory, that they are invading, is automatically an American citizen. It is funny that anyone would argue such an idiotic idea with a straight face.
Sometimes people are just so crazy …
Invading armies, like diplomats, are not subject to US jurisdiction, so their children born in US territory are not automatically citizens.