Trumps Executive Order On Illegal Immigrants Having Children In The US In Removing (Birthright Citizenship) Will It Stand?

[LizaMarie]

Just think if the supreme Court does rule that all people only refers to the former slaves, because that was the alleged intent of the writers, I wonder what other parts of the constitution can be reinterpreted?

The 14th amendment plainly states if your born in the USA subject to the Jurisdiction of the USA(unlike diplomats) then your a citizen end off. Il

This is what I fear, yes.

 

[Truth7t7]

From what I can see an amendment is the only way to go and that would require compromise, something Trump is incapable of, and so are many Democrats as well.

If the supreme Court did back the executive order it would truly undermine the constitution.

It's "Interpretation" of the constitution

The Liberal Justices look at the constitution as a living changing document, and the Liberal historical twisted the original intent of the founding fathers

The Conservative court looks at the US constitution and the "Original" intent of the founders who wrote and ratified it, in this case birth right citizenship had to do with the newly freed slaves in America

The Supreme Court has already visited the issue in 1898 United States v. Wong Kim

The "Only Argument" I can see regarding the 1898 ruling would be a Trump Admin claiming "Enemy Forces Engaged In Hostile Occupation Of The United States Territory" will they pursue this possible?

Exclusion: born to enemy forces engaged in hostile occupation of the country's territory.

Wikipedia: United States v. Wong Kim Ark​

United States v. Wong Kim Ark, 169 U.S. 649 (1898), was a landmark decision[4] of the U.S. Supreme Court which held that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China",[5] automatically became a U.S. citizen at birth.[6] This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.[4]

In a 6–2 decision[120][121] issued on March 28, 1898,[122] the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that "the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth."[123] The opinion of the Court was written by Associate Justice Horace Gray and was joined by Associate Justices David J. Brewer, Henry B. Brown, George Shiras Jr., Edward Douglass White, and Rufus W. Peckham.[124]

Upholding the concept of jus soli (citizenship based on place of birth),[125] the Court held that the Citizenship Clause needed to be interpreted in light of English common law,[1] which had included as subjects virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory.[3][126][127] The court's majority held that the subject to the jurisdiction phrase in the Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth "single additional exception"—namely, that Indian tribes "not taxed" were not considered subject to U.S. jurisdiction).

 

[essentialsaltes]

Upholding the concept of jus soli (citizenship based on place of birth),[125] the Court held that the Citizenship Clause needed to be interpreted in light of English common law

The full decision goes on for quite a bit talking about the colonial and early American period, where again jus soli was unproblematically assumed and applied and adjudicated long before the Civil War. So whether the 14th was 'about' slavery, it was still in a context where 'all people' born here were considered citizens.

 

[JSRG]

Why do people think this Supreme Court--which is mostly conservative--absolutely will not choose to review a case if it comes before them? That's like thinking the last word on abortion from the Supreme Court was uttered in 1972.

This is obviously a reference to Roe v. Wade. But the thing about Roe v. Wade is that it was not only controversial at the time, it stayed controversial. From 1972 (when Roe v. Wade was issued) until 2022 (Dobbs v. Jackson overturning it), there was always at least one Supreme Court justice who was openly urging in their opinions for the decision to be overturned. The original decision had attracted a lot of criticism in the legal field, even from some who were politically inclined to agree with it. Akhil Amar, for example, is politically liberal and pro-choice but was very critical of the decision (having listened to some episodes of his podcast, what seem to be his "go-to" cases where he thinks the Supreme Court just made stuff up are Dred Scott v. Sandford, Roe v. Wade, and Trump v. United States (the immunity case)).

This sort of thing applies to other cases that were overturned. The most recent "big" overturn was Loper Bright overturning Chevron. But Chevron had attracted a bunch of criticism prior, there had been some hostility towards it shown by at least some justices, and it had become practically a dead letter by the Supreme Court already.

Or for an older example but one where the overturn happened quickly, let's consider the surprisingly fast reverse of Gobitis. Minersville School District v. Gobitis (1940), saying schools could force kids to salute the flag even if they considered it against their religion, which was then overturned in in West Virginia State Board of Education v. Barnette (1943). In between those cases, there grew considerable opposition to the first, on and off the court. Three of the justices in the majority of Gobitis stated in the opinion of an intervening case (Jones v. City of Opelika (1942)) that they regretted their votes in the original case and they wanted to overturn it. Between that and two of the justices who were in the original majority retiring and being replaced, what was an 8-1 decision was turned into a 6-3 decision the other way. But again, we saw signs the court was interested in overturning it (they had four guaranteed votes to do so, with the dissenter in the original case plus the three who said they changed their minds).

None of this is the case with United States v. Wong Kim Ark. I don't think any justice since the decision has called it into question, explicitly or implicitly (to be fair, there hasn't been nearly as many opportunities as there was for something like abortion--but still). Nor has there been that much of a groundswell legally to overturn it. Yeah, you can find some people in the legal field critical of it, but they tend to be more on the fringe. The vast majority of commenters I've seen on it--and this includes those of the more conservative variety--have

I'd also argue that the arguments against children of illegal or temporary immigrants gaining citizenship under the Fourteenth Amendment are very weak--but if they cared about what I thought were weak arguments, they wouldn't have ruled the way they did in Trump v. United States (the immunity case). Still, I'd say the arguments here are worse than that (not only on the merits, but also on the question of stare decisis: At least Trump v. United States wasn't overturning any prior decision).

But laying aside the question of the merits, for the aforementioned reason there's not much reason to think the Supreme Court would be willing to overturn an old precedent like this given the lack of impetus for it.

Of course, one doesn't necessarily need an overturn of Wong Kim Ark. A tactic one will often see by those who assert that the Citizenship Clause doesn't apply to the children of illegal immigrants (or go further like the executive order does and also deny it to the children of people who aren't permanent residents) is to say Wong Kim Ark doesn't apply, as the case was concerning the son of two legal permanent residents, and therefore does not apply to non-citizens who aren't legal permanent residents. Thus, they argue, the decision doesn't need to be overturned, just distinguished. It is technically true the case was concerning the son of legal permanent residents, but if one reads the reasoning of the case, it's hard to see how it wouldn't apply beyond that. The response to that is to say it's just dicta, but the "dicta" in question is the whole reasoning for the decision, so that's a bit of a weak attempt; it's not some side comment in a case we're talking about here, it's the whole reasoning for the decision.

To some extent, though, I'm actually appreciative of the executive order, because I would like to see this issue cleared up more officially by a court.

 

[JSRG]

It's "Interpretation" of the constitution

The Liberal Justices look at the constitution as a living changing document, and the Liberal historical twisted the original intent of the founding fathers

The Conservative court looks at the US constitution and the "Original" intent of the founders who wrote and ratified it, in this case birth right citizenship had to do with the newly freed slaves in America

This is actually not the case. "Original intent" originalism, or intentionalism as some call it, was somewhat popular in the past but has now been almost completely abandoned in favor of "original meaning" originalism. This doesn't mean intent is irrelevant, as intent can help inform the meaning, but under this paradigm ultimately what matters is what the text of the law would have meant back when it was passed, even if what the text meant was something different than what the people who wrote it intended.

This blog post gives some good information on it:

Originalism vs. Textualism

One popular critique of originalism. (Source unknown.) A couple of days ago, I mentioned offhandedly that “originalism” and “textualism” are not the same thing. Then I moved…

www.jamesjheaney.com

I'd quibble a little on some of its terminology (it largely uses originalism to mean intentionalism which it frames in comparison to textualism, but I would personally say that originalism can refer to intentionalism or textualism, with textualism being the significantly more popular version), but on the whole I think it does a good job explaining how "original intent" has fallen by the wayside in favor of "original meaning"

That said, I would say even under original intent, it was clear the goal was more than to just apply to the slaves. They instead phrased things more broadly. And we especially know that was no accident because, well, they talked about how it would apply to people other than slaves (at least one Senator signaled this as being the reason for his opposition to it, he thought it was a bad idea to make citizens of everyone born in the US; I pointed to Originalism and Birthright Citizenship as a useful article before, but I'll do it again and note the discussion of it on page 447). It would say that the intent would be better described as an attempt to clarify how citizenship is gained, and also bring the former slaves into it.

 

[Truth7t7]

This is actually not the case. "Original intent" originalism, or intentionalism as some call it, was somewhat popular in the past but has now been almost completely abandoned in favor of "original meaning" originalism.

Sorry to break the news"Original Intent" of the forefathhers is the guideline for the present conservative SCOTUS in a 6/3 super majority

 

[Pommer]

Sorry to break the news"Original Intent" of the forefathhers is the guideline for the present conservative SCOTUS in a 6/3 super majority

The Founders weren’t in on the later amendments but “original intent” will sometimes look at the legislative-record to see what the debate had been when a Constitutional Amendment was proposed and passed.

 

[BBAS 64]

There is a Supreme Court precedence.

UNITED STATES v. WONG KIM ARK.​

Background:
* Wong Kim Ark was born in San Francisco to Chinese immigrant parents in 1873.
* In 1895, he traveled to China to visit family.
* Upon his return to the United States in 1895, he was denied entry by immigration officials who claimed he was not a U.S. citizen.
* The Case:
* Wong Kim Ark argued that he was a U.S. citizen by birthright under the 14th Amendment of the Constitution, which 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."
* The government contended that the 14th Amendment did not apply to children born in the United States to foreign parents who were not eligible for citizenship themselves.
* The Supreme Court Ruling (1898):
* The Supreme Court ruled in favor of Wong Kim Ark, affirming that he was a U.S. citizen by birth.
* The Court held that the 14th Amendment's Citizenship Clause applies to all persons born in the United States, regardless of their parents' citizenship status or race.
* This decision established the principle of birthright citizenship in the United States, meaning that anyone born within the U.S. borders is automatically a U.S. citizen.
* Significance:
* United States v. Wong Kim Ark is a landmark Supreme Court case that has had a profound impact on U.S. citizenship law.
* It affirmed the principle of birthright citizenship, a cornerstone of American identity.
* The case has been cited in numerous subsequent legal decisions related to citizenship and immigration.
In essence, the case established that the 14th Amendment's Citizenship Clause guarantees birthright citizenship for all individuals born within the United States, regardless of their parents' immigration status.

Good Day, MB


I am not so sure consider- https://docs.house.gov/meetings/JU/JU01/20150429/103384/HHRG-114-JU01-Wstate-GragliaL-20150429.pdf


I have heard that that on the writings of the Senator(s) that penned the 14th amendment in others writing explicitly say that it does not refer to aliens. The above document alludes to that. If that is the case the intent of the writer then I would assume the case is clear and the historical original intent would be followed by the originalist on the court if it is heard.

In Him,

Bill

 

[RocksInMyHead]

Good Day, MB


I am not so sure consider- https://docs.house.gov/meetings/JU/JU01/20150429/103384/HHRG-114-JU01-Wstate-GragliaL-20150429.pdf


I have heard that that on the writings of the Senator(s) that penned the 14th amendment in others writing explicitly say that it does not refer to aliens. The above document alludes to that. If that is the case the intent of the writer then I would assume the case is clear and the historical original intent would be followed by the originalist on the court if it is heard.

In Him,

Bill

I'm two pages into that document, and it has already made one material misstatement of fact:

Senators Lyman Trumbull of Illinois and Jacob Howard of Ohio, the principal authors of the citizenship clauses in both the 1866 Act and and the Fourteenth Amendment , both stated that "subject to the jurisdiction of the United States" means "not owing allegiance to anybody else." This would seem clearly to exclude birthright citizenship for the children of legal aliens and, a fortiori, of illegal aliens. It appears, therefore that the Constitution, far from requiring the grant of birthright citizenship to children of illegal aliens, is better understood as denying the grant. The Supreme Court has never ruled directly on the question

As we've been discussing, US v. Wong Kim Ark is a direct ruling on that exact question. Wong Kim Ark's parents were Chinese citizens ("subjects of the Emperor of China"), but the Supreme Court ruled that, by nature of his birth in the US, he was considered a US citizen.

The case is mentioned later, but its significance is downplayed.

 

[Oompa Loompa]

I believe the court will rule in favor of the children born in the US in birth right citizenship, the 14th amendment is plain and clear

"All persons born or naturalized in the United States"

I believe what calls the situation into question is the "and subject to the jurisdiction thereof" part.

 

[comana]

I believe what calls the situation into question is the "and subject to the jurisdiction thereof" part.

Who, other than foreign diplomats, is not subject to US jurisdiction once inside our borders?

 

[RDKirk]

I believe what calls the situation into question is the "and subject to the jurisdiction thereof" part.

I think the "and" is critical. It's not "either/or."

 

[durangodawood]

I believe what calls the situation into question is the "and subject to the jurisdiction thereof" part.

I hope no one is proposing that undocumented people within our borders are not subject to US jurisdiction.

 

[BPPLEE]

I think the "and" is critical. It's not "either/or."

I don't think birthright citizenship will be overturned

 

[Oompa Loompa]

Who, other than foreign diplomats, is not subject to US jurisdiction once inside our borders?

All I am saying is that is the angle the Trump administration is going with as far as I know.

 

[Oompa Loompa]

I think the "and" is critical. It's not "either/or."

I agree. But will it be enough to make a difference? I dont know.

 

[Goonie]

All I am saying is that is the angle the Trump administration is going with as far as I know.

And it is a bad angle. What I see them actually trying is to get the supreme court to rule that lower courts can't block executive orders nationwide. I think that is the aim, trying to end birthright citizenship is merely a vehicle to get that ruling.

 

[BPPLEE]

I hope no one is proposing that undocumented people within our borders are not subject to US jurisdiction.

I think what we think that means and what constitutional law scholars say it means may not be the same thing

 

[Oompa Loompa]

I hope no one is proposing that undocumented people within our borders are not subject to US jurisdiction.

Here is an article I found that may be useful.

‘Subject To The Jurisdiction Thereof . . .’ - American Legal Journal

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they

americanlegaljournal.com

A fully defensible reading and application of congressional intent on the 14th Amendment’s Citizenship Clause would result in no temporarily present foreigner being able to give birth to a U.S. citizen child — not a tourist, a guestworker, a foreign embassy employee, or any other category of visa-holder, nor an illegal alien.

 

[Oompa Loompa]

I hope no one is proposing that undocumented people within our borders are not subject to US jurisdiction.

‘Subject To The Jurisdiction Thereof . . .’ - American Legal Journal

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they

americanlegaljournal.com

The American Legal Journal appears to lean that way. However, I honestly have not yet finished reading the article since this post.