Birthright citizenship EO issued.

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infinity ag
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aggiehawg said:

Quote:

President Donald Trump's bid to cut off birthright citizenship is a "flagrantly unlawful attempt to strip hundreds of thousands American-born children of their citizenship based on their parentage," attorneys for 18 states, the city of San Francisco and the District of Columbia said Tuesday in a lawsuit challenging the president's executive order signed just hours after he was sworn in Monday.

The lawsuit, filed by 18 Democratic attorneys general, accuses Trump of seeking to eliminate a "well-established and longstanding Constitutional principle" by executive fiat.
LINK

This is not retroactive. Just applicable to babies born 20 Jan onward.
bobbranco
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mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.

The emboldened is more simply stated as "this means that the non-citizen must owe full allegiance to the United States and to no other country". It does not imply an illegal gets to drop a baby and gain rights.
TRADUCTOR
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If an illegal alien drops a baby on American soil, the entire family can access welfare programs that were supposed to be for U.S. citizens - in addition to the government assistance, illegal aliens can collect right away, such as food stamps and housing subs
The Constitution did not make U.S. citizenship a game of "Red Rover" with the Border Patrol. Haha! Too late - I had the baby! The 14th Amendment confirmed the citizenship rights of former American slaves, not 21st-century freeloaders from China.

Our ludicrous "anchor baby" policy was invented out of whole cloth by Justice William Brennan and slipped into a footnote in a Supreme Court opinion in 1982.

Anything the Times says on immigration ought to be treated like a press release from a tobacco company about the low risk of disease from smoking.

-Ann Coulter
BMX Bandit
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for those interested in reading on the two side of the argument, here are materials from two conservative people:

On the "not citizens" side, Amy Swearer, a young very sharp lawyer with the heritage foundation (cited above by Logos)



On the "citizens" side, James Ho, fifth circuit judge, who will be on short list for a SCOTUS spot, loved by Clarence Thomas (Ho has since made clear that if there is an "invasion," this does not apply):

https://scholarship.richmond.edu/lawreview/vol42/iss4/6/
mickeyrig06sq3
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AG
bobbranco said:

mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.

The emboldened is more simply stated as "this means that the non-citizen must owe full allegiance to the United States and to no other country". It does not imply an illegal gets to drop a baby and gain rights.
It doesn't say exclusively subject to the jurisdiction thereof, just that they are subject to the US jurisdiction. As stated previously, this is the way to keep those with ambassador status (diplomatic immunity) from being able to get birthright citizenship. Otherwise dual citizenship wouldn't be a thing; I wish it was exclusive. I'm not a fan of dual citizenship.

The moment the baby takes the birth canal taboggan and exits, it's subject to the jurisdiction of the US. It doesn't grant the parents citizenship, just the child. Eventually once the child turns 18, they may sponsor their family, but that's a different conversation.

BusterAg
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jacketman03 said:

So, quick question: everybody here is pretty okay with this, but what about if the next Dem president issues one saying that the 2nd amendment only applies to organized militias?


That will go through SCOTUS just like this issue will. And the likelihood of success of either is low.
It takes a special kind of brainwashed useful idiot to politically defend government fraud, waste, and abuse.
mickeyrig06sq3
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mickeyrig06sq3 said:

bobbranco said:

mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.

The emboldened is more simply stated as "this means that the non-citizen must owe full allegiance to the United States and to no other country". It does not imply an illegal gets to drop a baby and gain rights.
It doesn't say exclusively subject to the jurisdiction thereof, just that they are subject to the US jurisdiction. As stated previously, this is the way to keep those with ambassador status (diplomatic immunity) from being able to get birthright citizenship. Otherwise dual citizenship wouldn't be a thing; I wish it was exclusive. I'm not a fan of dual citizenship.

The moment the baby takes the birth canal taboggan and exits, it's subject to the jurisdiction of the US. It doesn't grant the parents citizenship, just the child. Eventually once the child turns 18, they may sponsor their family, but that's a different conversation.


Now that would be a loophole that could be closed. Something to the effect of "Anyone who obtained citizenship by being born in the US and not through their parents is not permitted to act as a sponsor for for anyone else". Maybe an exception for a spouse sponsorship.
BusterAg
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BMX Bandit said:

if the intent was to grant foreign babies citizenship, then why did they add the second requirement "and subject to the jurisdiction thereof".



This is non sensible. The number of babies born to foreign dignitaries in the US is way to small to command text in an amendment. This would be like adding a clause to an amendment specifically targeting babies born in the airspace over the US. It's so esoteric, it's not worth mentioning as part of the text of the amendment.

To exclude kids of diplomats & dignitaries, who are not subject to the jurisdiction of the US
It takes a special kind of brainwashed useful idiot to politically defend government fraud, waste, and abuse.
mickeyrig06sq3
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BusterAg said:

BMX Bandit said:

Quote:

If the intent was to grant foreign babies citizenship, then why did they add the second requirement "and subject to the jurisdiction thereof".



This is non sensible. The number of babies born to foreign dignitaries in the US is way to small to command text in an amendment. This would be like adding a clause to an amendment specifically targeting babies born in the airspace over the US. It's so esoteric, it's not worth mentioning as part of the text of the amendment.

To exclude kids of diplomats & dignitaries, who are not subject to the jurisdiction of the US

There's a small number of babies because that phrase is in there. If they didn't have that addendum, diplomatic assignments to the US would be a lucrative field for a lot of countries.
BusterAg
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mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.


A scotus ruling on the EO will define what any potential legislation would need to say to pass SCOTUS scrutiny, or if you would have to go the amendment route.

Also, the argument is that a fugitive from justice is not living under the jurisdiction of the US. If they were under jurisdiction, they would be facing court dates for their crimes.
BusterAg
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jacketman03 said:

If the noncitizen parent is not entitled to relief under 241(b)(3) of the INA, sure.

The funny thing about being a nation of laws is that the laws bind the government just as well as the governed.


Unfortunately, we are not, currently, a nation of laws.
HTownAg98
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BusterAg said:

mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.


A scotus ruling on the EO will define what any potential legislation would need to say to pass SCOTUS scrutiny, or if you would have to go the amendment route.

Also, the argument is that a fugitive from justice is not living under the jurisdiction of the US. If they were under jurisdiction, they would be facing court dates for their crimes.

Who gets to arrest a fugitive if they're not under the jurisdiction of the United States?
BusterAg
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infinity ag said:

Trump better have thought this one through.

If he fails because an SC overturn, then he would have egg on his face.


Much less egg than doing nothing. This is a good start, but it has to be a start.
BusterAg
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YokelRidesAgain said:

techno-ag said:

Better to have fought and lost on this one than to never have fought at all.
Is it, though? If SCOTUS rules that the 14th Amendment mandates birthright citizenship, that precedent likely stands forever. An open question that could be posed to a more favorable court in the future is better than a closed question that goes against you.

Barrett, Gorsuch, Kavanaugh and Roberts all appear to be risks to vote against Trump's position, and all it takes is two.


You could wait for an eternity for a more favorable court. It won't happen.

I think the odds of SCOTUS striking this down are high, but the language of the decision will help craft any new legislation or amendment.
BusterAg
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HTownAg98 said:

BusterAg said:

mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.


A scotus ruling on the EO will define what any potential legislation would need to say to pass SCOTUS scrutiny, or if you would have to go the amendment route.

Also, the argument is that a fugitive from justice is not living under the jurisdiction of the US. If they were under jurisdiction, they would be facing court dates for their crimes.

Who gets to arrest a fugitive if they're not under the jurisdiction of the United States?


If they were under the jurisdiction of the US, and not living in the US under open rebellion, they would turn themselves in. They are choosing to live outside of the law, and, therefore, outside of the jurisdiction of the US
It takes a special kind of brainwashed useful idiot to politically defend government fraud, waste, and abuse.
jopatura
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With Wong Ark Kim being decided so long ago, is there even any standing to challenge it? I would have to assume that if it even gets to SCOTUS, they are going to say this is already dealt with in Wong Ark Kim. Now challenging on the level of - what benefits should parents be allowed to have access to on behalf of the child and should the parents be allowed to stay here and should other non-American soil siblings be allowed to stay here - seems like it could be done.

But just "Is a baby born on American soil an American citizen?" - I don't think that has any standing to be challenged without a huge butterfly effect when other parties are in office.
infinity ag
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BusterAg said:

infinity ag said:

Trump better have thought this one through.

If he fails because an SC overturn, then he would have egg on his face.


Much less egg than doing nothing. This is a good start, but it has to be a start.

Agreed.
I am hoping that he's thought the entire process through though. I think he is far wiser than he was in 2016 and now better how to get things done.
Get Off My Lawn
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I get that lawyers can talk themselves in circles, but I still can't wrap my head around the concept that a child born to welcomed visitors or ambassadors can/must claim citizenship to their parents' country … but a child born to an unwelcomed illegal who is only here because they've eluded law enforcement somehow rates citizenship HERE.

I wonder if an EO which stated "we consider citizens of foreign nations present within the United States on impermanent status to be subjects of those respective nations as pertains to the birth of any children born while within our borders." wouldnt have set this issue up more persuasively.

The courts should place constitutional intent and rationality above the creep of precedent or modern exploitation of the absence of explicitly documented historical context.
mickeyrig06sq3
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BusterAg said:

mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.


A scotus ruling on the EO will define what any potential legislation would need to say to pass SCOTUS scrutiny, or if you would have to go the amendment route.

Also, the argument is that a fugitive from justice is not living under the jurisdiction of the US. If they were under jurisdiction, they would be facing court dates for their crimes.

If they're a fugitive, that inherently indicates they were subject to the court's jurisdiction. Jurisdiction has nothing to do with charges being brought, only whether you have the authority to bring the charges. Just like a cop not being able to exercise power outside of their jurisdiction.
infinity ag
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Get Off My Lawn said:

I get that lawyers can talk themselves in circles, but I still can't wrap my head around the concept that a child born to welcomed visitors or ambassadors can/must claim citizenship to their parents' country … but a child born to an unwelcomed illegal who is only here because they've eluded law enforcement somehow rates citizenship HERE.

I wonder if an EO which stated "we consider citizens of foreign nations present within the United States on impermanent status to be subjects of those respective nations as pertains to the birth of any children born while within our borders." wouldnt have set this issue up more persuasively.

The courts should place constitutional intent and rationality above the creep of precedent or modern exploitation of the absence of explicitly documented historical context.

Logic is simple.
If you cheat and scam or try to pull a fast one, you don't get citizenship.
If you ask for it and US law gives it to you, then you get it.

The Constitution written in the 1700s cannot take care of every situation in the 21st century.
bobbranco
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mickeyrig06sq3 said:

BusterAg said:

mickeyrig06sq3 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.


No need to address it, because the Constitution already does. In 14 (1) you see them make a distinction between "all/any persons" and citizens. If you read "all/any persons" as only legal immigrants, that has a cascading effect to a lot of other amendments and will have some major unintended consequences.

The only legal argument is the "subject to the jurisdiction thereof". If we say illegal immigrants aren't subject to US jurisdiction, then that also leads down a rocky path. If they're not subject to our jurisdiction, does that effectively make them sovereign citizens and they can't be charged with anything? We can't have our cake and eat it too.

Whether we like it or not, if we want to maintain some form of Constitutional high ground, then we don't bypass things because they're inconvenient. If we're ok with bypassing proper process, then we're no different than (D)'s, and we just hit the gas pedal on the inevitable collapse.


A scotus ruling on the EO will define what any potential legislation would need to say to pass SCOTUS scrutiny, or if you would have to go the amendment route.

Also, the argument is that a fugitive from justice is not living under the jurisdiction of the US. If they were under jurisdiction, they would be facing court dates for their crimes.

If they're a fugitive, that inherently indicates they were subject to the court's jurisdiction. Jurisdiction has nothing to do with charges being brought, only whether you have the authority to bring the charges. Just like a cop not being able to exercise power outside of their jurisdiction.
I thought that it's not that type of jurisdiction for anchor babies. It is owing of allegiance. The amendments original intent.
BMX Bandit
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Quote:

I get that lawyers can talk themselves in circles, but I still can't wrap my head around the concept that a child born to welcomed visitors or ambassadors can/must claim citizenship to their parents' country … but a child born to an unwelcomed illegal who is only here because they've eluded law enforcement somehow rates citizenship HERE.


It goes back to the old common law of people born in a country being subjected to the rule of that king. So it was a matter of "you are my subject" rather than "I get the privilege of being a subject of this government" like is in modern times


Quote:



The courts should place constitutional intent and rationality above the creep of precedent or modern exploitation of the absence of explicitly documented historical context.

I agree wholeheartedly. But if you look at the Ho article, there is a good argument that the intent of the 14th amendment and given the historical context was to include everyone born here except those understood at common law not to be. And at common law, there was no such thing as "illegal aliens"

This definitely needs supreme court finality.
Get Off My Lawn
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Yeah - but that doesn't fit the desires of those who want to perpetuate anchor baby loopholes so they pretend "subject" in this case means "touchable."

By their logic, Soleimani became subject to the United States and worthy of ACLU protection the moment our hellfire ripped him apart. And Huawei is subject to the United States because we took legal action against their spying hardware.

It's a contortion which fails when applied to other situations but it serves them so they use it.
BMX Bandit
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Quote:

With Wong Ark Kim being decided so long ago, is there even any standing to challenge it?


Two wholly different concepts. Standing means you have a legal injury and are entitled to seek relief from a court. It doesn't matter how old a precedent is.


Quote:

I would have to assume that if it even gets to SCOTUS, they are going to say this is already dealt with in Wong Ark Kim.


As said above, this issue was not dealt with in Wong Ark Kim. SCOTUS has not done an analysis of children born to people illegally in the US.

agracer
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AG
And Trump should use this as an argument to the poor in this country that the illegals are taking away there benefits.
HoustonAg9999
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yall saying this has no chance probably said the same about roe vs wade getting overturned.
TravelAg2004
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This is still one of the better articles on the matter. Easy for most non-legal folks to understand and not 10+ pages which most people won't read.

Quote:

The amendment was intended to give citizenship only to those who owed their allegiance to the United States and were subject to its complete jurisdiction. Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that "subject to the jurisdiction" meant not owing allegiance to any other country.

Today many people do not seem to understand the distinction between partial, territorial jurisdiction which subjects all foreigners who enter the U.S. to the jurisdiction of our laws and complete political jurisdiction, which requires allegiance to the U.S. government as well.

So while a foreign tourist could be prosecuted for violating a criminal statute, he could not be drafted if we had a military draft or otherwise be subject to other requirements imposed on citizens, such as serving on a jury. If a foreign tourist has a baby while in the U.S., her child is a citizen of her home country and owes no political allegiance to the U.S.

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude "children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he "owed immediate allegiance to" his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to all people born in America, no matter what the circumstances of their birth, and no matter the legal status of their parents.

Most legal arguments for universal birthright citizenship point to the Supreme Court's 1898 decision in U.S. v. Wong Kim Ark. But that decision only stands for the very narrow proposition that children born of lawful, permanent residents are U.S. citizens.
https://www.heritage.org/immigration/commentary/trump-right-ending-birthright-citizenship-constitutional
fredfredunderscorefred
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it isn't as easy as thinking 'well if they aren't subject to the jurisdiction thereof,' then we can't convict them. There are different types of 'jurisdiction' when it comes to such events. For some additional thinking on it, think of individuals that commit crimes in one country and flee to another country, and the extradition rights and duties involved for the respective countries, depending on citizenship of person involved (could be up to three countries: citizenship country of criminal; country of crime; country fled to). Here's some light reading on the US-Mexican treaty: https://wilj.law.wisc.edu/wp-content/uploads/sites/1270/2023/02/40.1_171-204_Leon.pdf.

wong kim ark provides a lengthy and long reading of history of the phrase etc. Not only does it have multiple references throughout generally speaking about the 14th not applying to people in the US without permission (invaders, etc), the question and holding specifically do NOT include someone coming over illegally (or for the sole purpose of having a baby, which, yes, does happen).

we get 'birthright citizenship' from a footnote from Brennan in a 5-4 decision in Plyler v Doe referencing Wong Kim Ark (footnote 19; https://tile.loc.gov/storage-services/service/ll/usrep/usrep457/usrep457202/usrep457202.pdf) but he seems to exclude some important references before his quote:

"The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."

The question and holding of Wong Kim Ark are clear about what it was being applied to:

"The question presented by the record is whether 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, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution: '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 evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether 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, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative"

A proper reading and interpretation of the 14th and historical documents would show that 1) birthright citizenship was NOT decided in wong kim ark; and 2) not intended by the 14th. The problem with an EO is that it can simply be reversed by another administration. Even if the EO applies the proper definition, it could be reversed as outside the bounds of the Executive (possibly rightly so; congress has given way too many powers away to the executive). The SCOTUS COULD however provide guidance to congress. instead of waiting on SCOTUS (by which time, dems may be back in power), congress should immediately try to amend the laws regarding citizenship. Define people that have snuck is as enemies trying to occupy or as invaders or however it needs to be done to align with the WELL documented intent that the 14th does not apply to certain people. I don't trust that the spineless cowards in congress would ever do this. They should, though.

edit: change/add the definitions as necessary here: 8 U.S. Code 1401 - Nationals and citizens of United States at birth https://www.law.cornell.edu/uscode/text/8/1401


WestAustinAg
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The US supreme court as set up now will not rule in Trump's favor. They will have a 5-4 majority that birth on US soil constitutes citizenship. Roberts and Amy Cohen Barrett will side with the dems on this.
Get Off My Lawn
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TravelAg2004 said:

This is still one of the better articles on the matter. Easy for most non-legal folks to understand and not 10+ pages which most people won't read.

Quote:

The amendment was intended to give citizenship only to those who owed their allegiance to the United States and were subject to its complete jurisdiction. Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that "subject to the jurisdiction" meant not owing allegiance to any other country.

Today many people do not seem to understand the distinction between partial, territorial jurisdiction which subjects all foreigners who enter the U.S. to the jurisdiction of our laws and complete political jurisdiction, which requires allegiance to the U.S. government as well.

So while a foreign tourist could be prosecuted for violating a criminal statute, he could not be drafted if we had a military draft or otherwise be subject to other requirements imposed on citizens, such as serving on a jury. If a foreign tourist has a baby while in the U.S., her child is a citizen of her home country and owes no political allegiance to the U.S.

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude "children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he "owed immediate allegiance to" his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to all people born in America, no matter what the circumstances of their birth, and no matter the legal status of their parents.

Most legal arguments for universal birthright citizenship point to the Supreme Court's 1898 decision in U.S. v. Wong Kim Ark. But that decision only stands for the very narrow proposition that children born of lawful, permanent residents are U.S. citizens.
https://www.heritage.org/immigration/commentary/trump-right-ending-birthright-citizenship-constitutional
This is what I far less elegantly tried to articulate. Thank you.

If I travel to London I temporarily become subject to the crown's laws but this does not reclassify me as a subject of the crown. Same word: very different meaning and implication. It is clear the more restrictive "belonging to" definition was the intent.
BMX Bandit
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Trump should have included this in his birthright citizenship EO (the below came out today).

FACT SHEET: President Donald J. Trump Protects the States and the American People by Closing the Border to Illegals via Proclamation

GUARANTEEING THE STATES PROTECTION AGAINST INVASION: Today, President Trump signed an Executive Order that suspends the physical entry of aliens engaged in an invasion of the United States through the southern border.
Prosperdick
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bobbranco
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Get Off My Lawn said:

Yeah - but that doesn't fit the desires of those who want to perpetuate anchor baby loopholes so they pretend "subject" in this case means "touchable."

By their logic, Soleimani became subject to the United States and worthy of ACLU protection the moment our hellfire ripped him apart. And Huawei is subject to the United States because we took legal action against their spying hardware.

It's a contortion which fails when applied to other situations but it serves them so they use it.

I am not a lawyer and I don't understand why these lawyers can't take a stand and get things done. All they want to do is argue 10 sides of every issue. It's sarcasm boys and girls, don't take it personally.
javajaws
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From the majority opinion of Wong Kim Ark by Justice Gray:

Quote:

Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are "subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States. . . .
This is a HUGE qualification in this case's majority decision - they did not really rule on the child of illegal aliens.

Keep in mind this was happening at a time when California was trying to keep its Chinese population down and this was really more of a discrimination case against Chinese than anything else.

Next paragraph of the majority decision:

Quote:

The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race born in China and continuing to be subjects of the Emperor of China, though having acquired a commercial domicil in the United States, has been upheld by this court for reasons applicable to all aliens alike, and inapplicable to citizens of whatever race or color . . . .
bmks270
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jacketman03 said:

BMX Bandit said:

jacketman03 said:

BMX Bandit said:

1873: Wong Ark Kim was born to Chinese parents in California. There was no "illegal immigration" at that time. The parents were barred from becoming citizens under US law and a treaty.

1882: Chinese exclusion act is passed, barring Chinese laborer immigration (first time we have illegal immigration)

1890: parents move back to China, he goes to visit them. He returns to US with no problem.

1896: he visits his parents again in China. This time he's denied re-entry based on Chinese exclusion act.


Court holds he's a citizen ftom birth.


So court has never analyzed the issue of a child born to people here illegally.




Except, in Wong Kim Ark, the Court said that, in addition to "Indians not taxed ", everybody born in the US is a citizen unless they are 1) the children of foreign diplomats, 2) born on a foreign public ship, or 3) born to enemy forces engaged in hostile occupation.

Now, you say illegal immigration first became a thing in 1882, and Wong Kim Ark was issued in 1898, so if there was an exclusion for the children of illegal immigrants, why didn't the Court mention it?
it was not mentioned because it was not part of the case. his parents were not in America illegally when he was born..




And he wasn't an "Indian not taxed", he wasn't born on a foreign public ship, the government didn't claim that his parents were foreign diplomats, and there were no allegations that he was born to enemy forces, but the Supreme Court still analyzed those exceptions, and said they are the only exceptions.


Illegal entry is arguably a hostile occupation.
But citizenship should be restricted for more than just the babies of illegals.

Still allows anyone in the country on some tourist or student or business travel visa to drop anchor babies.
 
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