Lion of the Blogosphere

Can the President end birthright citizenship with an executive order?

The first sentence of the 14th Amendment reads:

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.

According to the United States Supreme Court:

The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

https://supreme.justia.com/cases/federal/us/83/36/

So I say, yes he can!

But I am sure that liberal judges will interpret the Constitution differently than those Justices who were actually alive when the 14th Amendment was written and ratified.

Written by Lion of the Blogosphere

October 30, 2018 at EDT am

Posted in Law

59 Responses

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  1. https://en.m.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark

    By this definition, they only exclude people three minor category. The only question is whether illegals are not subject to the jurisdiction of the USA.

    Bruno

    October 30, 2018 at EDT am

  2. I doubt Roberts will want to go there.

    One thing that really needs to change is counting illegal aliens and non-citizens as Americans for the purpose of apportioning congressional districts. It basically lets rich liberals vote on behalf of the Guatemalan nannies and gardeners they’re exploiting, while encouraging some factions of government to undermine U.S. labor and immigration laws in order to maximize their political strength.

    Richard

    October 30, 2018 at EDT am

    • The actual understanding has a long history. You would need tough originalism to narrow the scope of the 14th amendment by executive order. Roberts would be the split vote (33%), if Kavanaugh followed (75%). Alito Thomas and Gorsuch would be ok. So there is around one chance out of 4 .

      That’s why Sotomayor diabetes maybe a very good news …

      Bruno

      October 30, 2018 at EDT am

  3. Regardless of whether it’s legal to end birthright citizenship with an executive order, this will be immediately challenged and will be bouncing around in the courts for quite a while. I personally think defining, “subject to the jurisdiction thereof,” is a matter of US Statute and ultimately Congress can define it. But in any case, I’m more than happy that Trump has done this since it shows he’s actually doing something on this issue: The Holy Grail of Immigration Restrictionists!

    So thanks Trump!

    Mike Street Station

    October 30, 2018 at EDT am

  4. 20 minutes ago I heard a newscaster on the SF local ABC radio affiliate say that Trump is “trying to repeal the 14th amendment.”

    Marty

    October 30, 2018 at EDT am

    • If you can’t trust a TV anchor for legal advice who can you trust?

      Curle

      October 30, 2018 at EDT pm

  5. Nothing, absolutely nothing is more absurd than birthright citizenship. It’s used to abuse the laws of the country and undermine its sovereignity. A government that has been complicit in this disgrace for decades is useless and should be incarcerated and replaced by a dictatorship. This is very simple.

    Yakov

    October 30, 2018 at EDT am

    • I agree. And nothing makes that point more than “birthright tourism”. Basically, there are doctors in California selling “tourist” packages to resorts for pregnant women from foreign countries. They visit for a month to deliver a baby with a US birth certificate. Then go back home with a baby whose a US citizen. The whole thing is absurd. That this hasn’t been stopped shows how corrupt and inept politicians are.

      destructure

      October 30, 2018 at EDT pm

      • #metoo

        extreme death penis

        October 31, 2018 at EDT am

      • I personally know an Indian family who gained Canadian citizenship in exactly this manner. The vast majority of white Canadians are clueless about the practice’s existence.

        Roli

        October 31, 2018 at EDT pm

  6. Of course he can under the 14th amendment. But is there statutory law that would prevent it?

    Blue Tribe Dissident

    October 30, 2018 at EDT am

  7. I thought it was just red meat for the Trumpers to digest before midterms (it certainly is that) but now wondering if it could work. Cool beans.

    Paul Rise

    October 30, 2018 at EDT am

  8. Great legal argument.

    MoreSigmasThanYou

    October 30, 2018 at EDT am

  9. IMO not worth doing before 6 SCOTUS justices. Maybe 7 since Gorsuch seems to be an open-borders cuck.

    snorlax

    October 30, 2018 at EDT pm

  10. It’s official, Lindsey Graham is a shitlord now:

    (would probably still vote for amnesty though)

    IHTG

    October 30, 2018 at EDT pm

    • You may be able to convince me to give a limited amnesty (no criminal activity, like fake ID, in the US for X years, know English, etc.) if this passed beforehand.
      But it needs to pass first.

      Half Canadian

      October 30, 2018 at EDT pm

  11. it’s hard to keep up w/ all the October Surprises.
    I like this one.

    amused observer

    October 30, 2018 at EDT pm

  12. There is far too much precedent at this point, unfortunately. The President and the SC would be wildly overstepping their bounds to make a unilateral decision overturning 80 years of a fairly unanimous reading of the 14th amendment. This really requires a new constitutional amendment. The other obvious issue is that if Trump can negate citizenship by executive order, the next President can just as easily vacate that order.

    Peter Akuleyev

    October 30, 2018 at EDT pm

    • “The other obvious issue is that if Trump can negate citizenship by executive order, the next President can just as easily vacate that order.”

      True. But I’d be willing to bet they’ve considered that. Perhaps it will lead to a supreme court ruling making a constitutional amendment unnecessary. I’d love SCOTUS to rule on that in Trump’s 2nd term after he’s replaced a couple of more justices.

      First, the whole concept of anchor babies is gaming the system. Second, it was never the intent of the 14th amendment. Third, “precedent” be damned. When has that ever stopped the left from doing anything? And, finally, the 14th Amendment was always a farce. It was “passed” under highly irregular circumstances making its legitimacy debatable. And it’s been abused to justify all kinds of schemes that obviously weren’t its intent.

      destructure

      October 30, 2018 at EDT pm

      • original intent is the only legit jurisprudence, but it’s also apolitical.

        as a result there are no original intenters.

        scalia was expressly AGAINST original intent because he was a corrupt short fat guido.

        original intent allows barring anchor babies, but it also allows gun control, contra the NRA and morons.

        hugo black is the only legit justice since 1800.

        ed begley, III

        October 30, 2018 at EDT pm

      • scalia was for something called “original meaning”.

        ed begley, III

        October 30, 2018 at EDT pm

    • The time for kvetching is over. It is time to reshape the world in our image.

      Let the good times roll!

      Abraham Lincoln

      October 31, 2018 at EDT pm

  13. snorlax

    October 30, 2018 at EDT pm

  14. A great case for original intent. And a great time to adjudicate it.

    thesoftpath

    October 30, 2018 at EDT pm

  15. Birthright citizenship made sense when immigrants came on sailing ships and never returned to their homeland. It makes no sense today, when we have pregnant women flying in to give birth in Canada or the USA, securing a passport for the anchor baby, and then returning home.

    Rosenmop

    October 30, 2018 at EDT pm

    • 19th century immigrants would often give up and return home.

      Blue Tribe Dissident

      October 30, 2018 at EDT pm

  16. Aw, man, leave it to Sailer’s commentariat to put theanti-simitic spin on this story:
    I tell you what. He’s found the only thing that will stop people talking about murdered jews.

    Stop the Hate

    October 30, 2018 at EDT pm

  17. Libs will just say that The Slaughterhouse Cases are irrelevant because they’ve effectively been superseded by all the decisions “incorporating” the Bill of Rights.

    Hermes

    October 30, 2018 at EDT pm

    • The Bill of Rights say nothing about citizenship. The last word in citizenship is the first sentence of the 14th Amendment.

      Lion of the Blogosphere

      October 30, 2018 at EDT pm

      • Right, but I thought The Slaughterhouse Cases had essentially been obviated by more recent interpretations of the Fourteenth Amendment. Liberals seem 100% sure that it’s totally cut-and-dry that the 14th amendment guarantees Birthright citizenship, though I’m aware the Supreme Court has never ruled on the issue.

        Hermes

        October 30, 2018 at EDT pm

    • Hey Hermes can you e-mail me? Fortaleza84@gmail.com

      fortaleza84

      October 31, 2018 at EDT am

  18. It is clear that Trump can not end birthright citizenship with an executive order. He can attempt to alter the definition of “subject to the jurisdiction thereof” to narrow the meaning. He could claim that people in the country illegally or on tourist visas are not subject to the jurisdiction of the USA, but this does not end birthright citizenship.

    The whole concept of being in the country illegally or on a temporary visas did not exist when the 14th amendment was ratified. The people that were considered not subject to US jurisdiction then were diplomats that had diplomatic immunity. They could not be prosecuted for crimes, only expelled. Does this mean illegal aliens cannot be prosecuted for crimes in the US, but only deported?

    I suspect this is just a political stunt.

    MikeCA

    October 30, 2018 at EDT pm

    • “It is clear that Trump can not end birthright citizenship with an executive order.”

      Why is that clear? I only hear everyone on CNN saying “it’s clear it’s clear” when an ACTUAL SUPREME COURT CASE tells us that Trump is right and he is merely ordering the government to start following the 14th Amendment,

      Lion of the Blogosphere

      October 30, 2018 at EDT pm

    • The ONLY people the Congress were thinking about when the 14th Amendment was passed were recently freed former black slaves. I suspect that Trump will phrase the order such that illegals and tourists lose birthright citizenship, while valid permanent residents retain it. This presents an almost slam dunk case for the Supreme Court as illegals and tourists are clearly not “subject to the jurisdiction” of the USA.

      I don’t think this is a stunt. Rand Paul (and his father) have long argued this position, Trump took it up during the campaign, and even Lindsay Graham is now on board. The idea that illegals and tourists can birth American citizens is so perverse that it shocks the conscience of practically all Americans. Roberts would have a very difficult time voting this down.

      PerezHBD

      October 30, 2018 at EDT pm

  19. Despite the plain text of the Fourteenth Amendment, Indians (Native Americans) were not granted full citizenship until the Indian Citizenship Act was passes in 1924. This act was passed in part because of the loyal service many Indians rendered in the armed forces during World War One.

    Black Death

    October 30, 2018 at EDT pm

    • Proof that at the time, the 14th Amendment was understood only to apply to the freed negro slaves.

      Lion of the Blogosphere

      October 30, 2018 at EDT pm

      • There actually is some question whether Native Americans are subject to US jurisdiction. Many tribes have treaties with the US that strongly suggest they are sovereign states.

        MikeCA

        October 30, 2018 at EDT pm

      • Exactly right. If the original intent of the Fourteenth Amendment was to grant citizenship to everyone born in this country, the Indian Citizenship Act would have been unnecessary.

        Black Death

        October 30, 2018 at EDT pm

      • (sigh) Why couldn’t they have just said straight out, “the darkies be citizens now”?

        Tarl

        November 2, 2018 at EDT pm

  20. Progressives are big on borrowing precedent from foreign courts … except when it comes to birthright citizenship.

    John D'oh

    October 30, 2018 at EDT pm

    • ALL NON ORIGINAL INTENT JUDGES ARE USUPERS.

      UNFORTUNATELY…

      THIS IS ALL JUDGES TODAY…

      WHETHER LIBERAL OR CONSERVATIVE.

      ed begley, III

      October 30, 2018 at EDT pm

  21. Why are the constitution and its amendments so poorly written? Unless someone has diplomatic immunity, aren’t they subject to the jurisdiction of this country when they are here? If they meant something else by this amendment, why not write it more clearly?

    Dave Pinsen

    October 30, 2018 at EDT pm

    • I’m not a legal scholar. But the issue seems to hinge on how “jurisdiction” is defined. Leftists claim that anyone within America’s borders is under US jurisdiction because they’re subject to US laws. But I don’t believe that was the intended context. I believe it was a clumsy way of referring to people who were born to people who legally resided in America and did not have foreign citizenship. If someone (or their parents) is a foreign citizen then they’re not really under US jurisdiction.

      destructure

      October 30, 2018 at EDT pm

      • That doesn’t answer the question. Why is the constitution and the Amendments riddled with vague speech? People were clearly capable of writing things out with careful specificity at the time. I’ve read some of it. Look at contemporary wills. Why did they repeatedly not bother with US law? I literally think they were drunk half the time, no joke (see Alcoholic Republic). I mean, there’s this bizarre parenthetical statement about militias in the 2nd amendment.

        bobbybobbob

        October 30, 2018 at EDT pm

      • “Why is the constitution and the Amendments riddled with vague speech? ”

        Because they thought it was more elegant looking, and didn’t forsee the future.

        Lion of the Blogosphere

        October 31, 2018 at EDT am

      • Words can have multiple meanings. The meaning mapped to a word by people is based on the probability of that word mapping to that meaning. The probability is determined by the usage of words by those speaking it at the time. Reading Shakespeare now results in the meaning ascribed to (some if not most of) the words seeming vague and ambiguous. That is because it was written in a different time and the semantic probabilities between now and then have changed.

        chris

        November 1, 2018 at EDT am

    • It was simply an attempt to describe former black slaves, and since everybody knew and understood this at the time, it really wasn’t a big deal. And I would say that only permanent legal residents are subject to US Jurisdiction in the sense of this amendment. A tourist is mostly a subject of the jurisdiction where they are from. An illegal is pretty much entirely a subject of the jurisdiction from where they are from as their only possible legal interaction with the US Government would be deportation if caught.

      PerezHBD

      October 30, 2018 at EDT pm

      • A tourist is subject to the jurisdiction of where they are visiting too. The tourists who spray painted graffiti on that historic wall in Thailand are subject to Thailand’s laws against that. A tourist who brakes laws here risks getting prosecuted too.

        Dave Pinsen

        October 30, 2018 at EDT pm

    • Because nobody could possibly have anticipated the vast changes that would occur in human society. I’m sure if the framers of the 14th Amendment had had a crystal ball allowing them to peer into the future, they would have included a footnote saying “hey 21st century people, ‘due process’ and ‘equal protection’ don’t mean two men have the right to ‘marry’ each other.” But they didn’t.

      Hermes

      October 30, 2018 at EDT pm

  22. It’s progress, a huge step forward. Prior to the President’s action today the fakestream media refused to address the matter, trying to keep it off the table for consideration. The Overton window has shifted, every politico should and will be compelled to address the matter forthrightly. Hopefully the President can get around to address other immigration considerations: the massive numbers involved, the abuse of the refugee laws, the ethnic composition of the immigrants and how the skewing of the immigrant flow towards latins and asians supports the left and more.

    Daniel Heneghan

    October 30, 2018 at EDT pm

  23. The problem is that many read the phrase “subject to the jurisdiction” too narrowly. The 14th Amendment’s definition of citizenship definitely did not apply to American Indians in general. They could become citizens under the Dawes Act but that required affirmative acts on the part of individuals. Native Americans where not “subject to the jurisdiction” of the United States for purposes of civil law, but were clearly subject to criminal jurisdiction if they broke a criminal statute, state or federal.

    Del

    October 30, 2018 at EDT pm

  24. People are saying it’s anti-Semitic to accuse Soros of opening America’s borders to the third-world. For them, I only have to offer this piece written by Soros himself:

    https://pbs.twimg.com/media/Dqif8OuXgAE3qx6.jpg:large

    shawnreturnsfakeemail@gmail.com

    October 30, 2018 at EDT pm

    • Either he is throwing out his money, or the businesses are legit.

      Lion of the Blogosphere

      October 30, 2018 at EDT pm

    • When’s Lion going to write a post about sedition? Soros seems a worthy candidate for prosecution.

      Curle

      October 30, 2018 at EDT pm

  25. If the Supreme Court allowed something like this the whole constitution would effectively be rewritten every time a new president that would come into office.

    I agree with restrictions, but through the legal avenue of amending the constitution, not executive order bullshit.

    Enough legislating from the executive office, this isn’t what America is supposed to be.

    Kaz

    October 30, 2018 at EDT pm

  26. the US as a state has been around since 1776, but really more than 100 years before…

    isn’t that long enough?

    are any here opposed to affirmative action based on some objective measure of depth of american ancestry?

    if you’re a non-fake liberal you’d support this as “african-americans” have deep roots and native americans have the deepest.

    ed begley, III

    October 30, 2018 at EDT pm

  27. BTW, Whitey Bulger got whacked earlier today.

    Black Death

    October 30, 2018 at EDT pm

  28. Not an expert in statutory construction, but if you follow the logic of the Heller decision, then it is clear that birthright citizenship is not automatic.

    All words contained in statutes matter. “Subject to the jurisdiction thereof” cannot be read as a nullity that would mean the same thing in the sentence if it were not there.

    For example, if birthright citizenship was the intent, then the sentence should read:

    “All persons born or naturalized in the United States are citizens of the United States and of the state wherein they reside.”

    Yet, it doesn’t. It reads:

    “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.”

    “subject to the jurisdiction thereof” is not superfluous and cannot be read in the statute as if it does not exist.

    map

    October 31, 2018 at EDT am


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