twk said:
BusterAg said:
twk said:
The underlying problem is that the 14th amendment was written at at time when we did not have the concept of controlled immigration. There was no such thing as an "illegal alien" at the time -- you could be a foreign citizen or subject present in the United States, but how you got here didn't really matter. And, of course, one cannot forget that the object of the 14th amendment was to secure citizenship for the recently freed slaves. Others have pointed out, above, that Native American tribes, though clearly present within the borders of the US, were not treated as citizens because they were "not subject to the jurisdiction thereof." So, with that background, there is certainly scope to argue that the jurisdiction exclusion in the 14th amendment covers more than just those foreigners with diplomatic immunity and enemy combatants.
But, the practical implications of adopting a different construction by judicial interpretation are pretty daunting. It would be one thing to say that, going forward, are going to construe the 14th amendment as only granting citizenship to children of American citizens and of permanent resident (legal) aliens, but a court interpreting the 14th amendment can't make a policy choice -- it is simply one interpretation or the other. That's why its extremely unlikely that a John Roberts Supreme Court would adopt the narrower construction, because to do so would suddenly make millions of people that we have all assumed were American citizens, now not citizens.
I totally disagree with this point of view as a valid concern, that any ruling limiting the interpretation of the 14th Amendment would have to be universally applied to all current and future citizens.
It is easy as saying that it is illegal under the law to grant citizenship, that people that had been granted citizenship before illegally were not to be considered to be illegal under a latches argument. Latches is an equitable defense, and any defendant could argue that the US government had slept on this issue for too long, that doing so prejudiced the defendant, that they formed their life on the assumption that they were legally granted citizenship.
Boom, issue solved. This is just a bogeyman trotted out there that has no significant risk, in my view.
Latches is defined as: a doctrine in equity whereby courts can deny relief to a claimant with an otherwise valid claim when the party bringing the claim unreasonably delayed asserting the claim to the detriment of the opposing party.
Seems pretty cut and dried to me.
You can't run the statute of limitations against the government. I suspect laches is the same.
Trying to adjudicate millions of claims of laches would drown the courts.
I think the argument regarding the proper interpretation of the amendment not granting citizenship to children of of foreign nationals is pretty persuasive, but, you know that Roberts, being a politician at heart, is going to look at the practicalities. The only fool proof way to solve this is with a constitutional amendment.
1) Are you saying that the government does not have a statue of limitations? I would find that to be pretty easy to disprove. What makes you say this?
2) The whole point of latches is that the claimant can't delay unnecessarily.
3) You wouldn't have to adjudicate millions of claims. You would only feasibly have to adjudicate one. And, a strongly worded warning in the opinion that SCOTUS might find future cases subject to latches would kill that in one swope, anyways, in the original opinion. Thomas, in particular, likes to write concurrences stating that SCOTUS didn't address fact X in the opinion, but, in his opinion, future cases that address X might find an opinion stating Z for reasons A, B, and C.
4) A constitutional amendment would be ideal. I don't think you are going to get it through congress, though. But, at 60% popular approval rating, you are getting close to the 2/3rd majority you are going to need for an Article 5 constitutional convention. You wouldn't need 2/3 majority of the popular vote, you would need 2/3rd majority of legislatures, which lean more conservative than the popular vote. I think we might be getting close to that.
Would be easier to settle with a good court case, but, I don't believe that Scotus has the balls to address it.
It takes a special kind of brainwashed useful idiot to politically defend government fraud, waste, and abuse.
