Birthright citizenship

One of Trump’s stated goals is to end birthright citizenship as it is currently understood. 

As of right now, if you are born in this country you are granted US citizenship. It’s part of the 14th amendment. Trump wants to end that right for the children of undocumented immigrants via executive order. This will clearly be challenged in Federal Court and most likely get heard by Alito and his lackeys. Do you think they will uphold or overturn Trump’s order?

https://www.npr.org/2025/01/20/g-s1-43765/trump-inauguration-birthright-citizenship

mrincredible said:

One of Trump’s stated goals is to end birthright citizenship as it is currently understood. 

As of right now, if you are born in this country you are granted US citizenship. It’s part of the 14th amendment. Trump wants to end that right for the children of undocumented immigrants via executive order. This will clearly be challenged in Federal Court and most likely get heard by Antonin Scalia and his lackeys. Do you think they will uphold or overturn Trump’s order?

https://www.npr.org/2025/01/20/g-s1-43765/trump-inauguration-birthright-citizenship

heard by who? Scalia's a bit dead.

anyway, I think even this may be beyond the pale for SCOTUS. But they can be pretty inventive about creating justifications for unjustifiable opinions, so who knows.

I'd lean towards Roberts and what's-her-name voting against it though. Overruling an amendment by Presidential fiat may be a bit too far for them.

I **** hope so anyway.

I don't think the current SCOTUS would go along with it. If Trump really wants to make it happen, he should wait until there are some more openings and he can get Cannon and Kacsmaryk onto the court.

drummerboy said:

heard by who? Scalia's a bit dead.

anyway, I think even this may be beyond the pale for SCOTUS. But they can be pretty inventive about creating justifications for unjustifiable opinions, so who knows.

I'd lean towards Roberts and what's-her-name voting against it though. Overruling an amendment by Presidential fiat may be a bit too far for them.

I **** hope so anyway.

Eep. I meant Alito. The one who isn’t dead.   Mea Culpa. 

Once again (like with that stupid 2nd amendment) the wording of the amendment itself is the problem.

“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.”

There’s that clause “subject to the jurisdiction thereof” which gives them wiggle room to claim that children of undocumented immigrants aren’t subject to the jurisdiction of the United States because their parents don’t have legal residence. That’s where they hang their argument that he can do this without actually countermanding the provisions of the amendment. 

That's a dumb argument. People who are part of a foreign embassy can claim diplomatic immunity after all -- is the argument that a similar get-out-of-jail free card should extend to anyone here without proper documentation?

mrincredible said:

drummerboy said:

heard by who? Scalia's a bit dead.

anyway, I think even this may be beyond the pale for SCOTUS. But they can be pretty inventive about creating justifications for unjustifiable opinions, so who knows.

I'd lean towards Roberts and what's-her-name voting against it though. Overruling an amendment by Presidential fiat may be a bit too far for them.

I **** hope so anyway.

Eep. I meant Alito. The one who isn’t dead.   Mea Culpa. 

Once again (like with that stupid 2nd amendment) the wording of the amendment itself is the problem.

“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.”

There’s that clause “subject to the jurisdiction thereof” which gives them wiggle room to claim that children of undocumented immigrants aren’t subject to the jurisdiction of the United States because their parents don’t have legal residence. That’s where they hang their argument that he can do this without actually countermanding the provisions of the amendment. 

The framers sure could mangle the English language.

PVW said:

That's a dumb argument. People who are part of a foreign embassy can claim diplomatic immunity after all -- is the argument that a similar get-out-of-jail free card should extend to anyone here without proper documentation?

They don’t need a smart argument. They just need some kind of hook. It all depends on how the SC decides to frame their decision.

Either way, it’s red meat for his base of xenophobes and racists. And would earn a huge shrug from a lot of the rest of the country who don’t understand the significance of the amendment.

mrincredible said:

PVW said:

That's a dumb argument. People who are part of a foreign embassy can claim diplomatic immunity after all -- is the argument that a similar get-out-of-jail free card should extend to anyone here without proper documentation?

They don’t need a smart argument. They just need some kind of hook. It all depends on how the SC decides to frame their decision.

Either way, it’s red meat for his base of xenophobes and racists. And would earn a huge shrug from a lot of the rest of the country who don’t understand the significance of the amendment.

Last time, Roberts would get pretty put-out by dumb and lazy arguments -- for instance, when he ruled against the Trump admin on the citizenship question on the census. I think the odds of Trump prevailing before the current court on birthright citizenship are very low.

Ok. I’m going to say I’m 54% confident the majority will uphold Trump’s executive order. 

PVW said:

mrincredible said:

PVW said:

That's a dumb argument. People who are part of a foreign embassy can claim diplomatic immunity after all -- is the argument that a similar get-out-of-jail free card should extend to anyone here without proper documentation?

They don’t need a smart argument. They just need some kind of hook. It all depends on how the SC decides to frame their decision.

Either way, it’s red meat for his base of xenophobes and racists. And would earn a huge shrug from a lot of the rest of the country who don’t understand the significance of the amendment.

Last time, Roberts would get pretty put-out by dumb and lazy arguments -- for instance, when he ruled against the Trump admin on the citizenship question on the census. I think the odds of Trump prevailing before the current court on birthright citizenship are very low.

otoh, roberts has joined and written some truly horrible decisions, not just in their effect but in the tortured reasoning used to justify them.

I wouldn't go better than 50-50 on this one. maybe 48-52, in the bad way.

also, re the census decision - the effect here would have been minor. it was a safe way for roberts to show his non-existent backbone. he constantly does this.

he's pretty much the worse chief justice of the last 100 years. and he's only gonna get worser with trump prodding him.

mrincredible said:

Eep. I meant Alito. The one who isn’t dead.   Mea Culpa. 

Once again (like with that stupid 2nd amendment) the wording of the amendment itself is the problem.

“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.”

There’s that clause “subject to the jurisdiction thereof” which gives them wiggle room to claim that children of undocumented immigrants aren’t subject to the jurisdiction of the United States because their parents don’t have legal residence. That’s where they hang their argument that he can do this without actually countermanding the provisions of the amendment. 

Subject to means you're subject to the laws and regulations of the host nation. A registered diplomat, visiting officials are not subject. When they commit a crime they cannot be prosecuted by the host nation. They get a parking ticket they're immune from the requirement to pay.

Sometimes even if you're not a diplomat or official it is argued that the offender is not subject. The wife of a U.S. diplomat living in England who killed a youngster escaped British justice when our government claimed she was not subject to British jurisdiction. 

https://www.cbsnews.com/news/harry-dunn-uk-anne-sacoolas-suspended-prison-sentence/

If you argue illegal parents are not subject to our jurisdiction then they are also immune to our laws and regulations.

Or will the Trump administration with the concurrence of this SC implement an exceptional legal doctrine they are not subject when its the birth of their children but subject otherwise?

TGreene said:

Or will the Trump administration with the concurrence of this SC implement an exceptional legal doctrine they are not subject when its the birth of their children but subject otherwise?

I think this is what concerns me. Despite what others have said, I do feel like we are on a bit of a razor’s edge when it comes to this kind of decision.

What is his plan for all of those who are already considered citizens as a result of birthright citizenship? Will he then consider those who obtained citizenship by marriage?

Melania gained citizenship based on her EB-1 Visa reserved for people with "extraordinary ability." She then sponsored her parents. How does this issue not draw attention to her road to citizenship? I wonder what her comments will be. 

please remember that this SCOTUS will just make up **** to reach the desired opinion.

Morganna said:

What is his plan for all of those who are already considered citizens as a result of birthright citizenship? Will he then consider those who obtained citizenship by marriage?

Melania gained citizenship based on her EB-1 Visa reserved for people with "extraordinary ability." She then sponsored her parents. How does this issue not draw attention to her road to citizenship? I wonder what her comments will be. 

I think you’ve got some valid points. There has been no indication they’ll try and go after anyone retroactively. I don’t know if they would. I don’t know how many current US citizens have parents who didn’t have legal status when they were born.  I think it would be a huge step to propose derecognizing such people. 

That being said, I would not put it past the Trump party to consider this if it meant taking several thousand registered Democrats out of the picture. 

here's the thing the MAGAs aren't realizing yet. How will this be enforced? In order to apply for a birth certificate are parents going to have to provide proof of their own citizenship or legal residence?

it's going to add a bureaucratic annoyance to the process for literally every baby born in the U.S. if they actually enforce this order.

ml1 said:

here's the thing the MAGAs aren't realizing yet. How will this be enforced? In order to apply for a birth certificate are parents going to have to provide proof of their own citizenship or legal residence?

it's going to add a bureaucratic annoyance to the process for literally every baby born in the U.S. if they actually enforce this order.

personally, I must believe, to retain any sense of sanity, that such a blatantly unconstitutional order will be stopped dead in its tracks, and quickly.

this is a bellwether for what's to come. what SCOTUS will let him get away with.

ml1 said:

here's the thing the MAGAs aren't realizing yet. How will this be enforced? In order to apply for a birth certificate are parents going to have to provide proof of their own citizenship or legal residence?

it's going to add a bureaucratic annoyance to the process for literally every baby born in the U.S. if they actually enforce this order.

Good points. It’s a performative move for sure. And I don’t know where the bureaucratic problems would hit. I think most municipalities would continue to issue birth certificates as normal. But then applying for a social security number or passport might become the sticking point. 

100% this fails.  Maybe Thomas bites at an argument, but Kavanaugh, Gorsuch, Coney Barrett, and Roberts no way. Don’t even think Alito would bite. 

Steve said:

100% this fails.  Maybe Thomas bites at an argument, but Kavanaugh, Gorsuch, Coney Barrett, and Roberts no way. Don’t even think Alito would bite. 

These guys have already crafted an argument out of whole cloth to give the president immunity. I wouldn't put anything past them.

Nope.  To say that they are not subject to the jurisdiction of the US would, as TGreene points out, render them immune. They will not overrule precedent here.  No chance. 

just to vent:  News headline summary on a local radio station this morning referred to birthright citizenship as an "immigration policy."  just wanna weep

Steve said:

100% this fails.  Maybe Thomas bites at an argument, but Kavanaugh, Gorsuch, Coney Barrett, and Roberts no way. Don’t even think Alito would bite. 

I agree.

Trump's executive order is to direct social security not to recognize them as citizens and the State Department to not issue them passports.

But what happens when the SC rules they are citizens and he disregards them? The SC has no enforcement power. That power resides with the executive branch.

Sure, the SC can charge him or his agents with contempt. But I believe in the Federal system a contempt charge requires a separate trial with the justice dept needing to prosecute. We see that when congress finds someone in contempt but nothing happens due to lack of justice dept action.

Even if a contempt is successfully prosecuted then the president can simply pardon. The reality is we live in a "do what I tell you because I can pardon you if the courts don't like it."

The only thing holding Trump in  check should he act illegally is impeachment. I don't see that happening.

the only reason I think it's more likely to fail is because SCOTUS will not think this is a big enough issue to issue an expansive supporting decision that would be very controversial, and it will allow them to say "see? we stood up to Trump! please respect us.".

They will save the big guns for more important issues.

But any argument that says they'll do it because it's the correct thing to do in terms of jurisprudence kind of ignores what this court has been doing.

And doing it so as to follow precedent? Really? This court? They clearly treat precedent as a minor inconvenience, and will ignore it at will as the need arises. As they have already done and will continue to do.

I guess my point is that I think attributing good faith to this court is kind of naive. Everything they do looks at politics first, then the constitution.

TGreene said:

I agree.

Trump's executive order is to direct social security not to recognize them as citizens and the State Department to not issue them passports.

But what happens when the SC rules they are citizens and he disregards them? The SC has no enforcement power. That power resides with the executive branch.

Sure, the SC can charge him or his agents with contempt. But I believe in the Federal system a contempt charge requires a separate trial with the justice dept needing to prosecute. We see that when congress finds someone in contempt but nothing happens due to lack of justice dept action.

Even if a contempt is successfully prosecuted then the president can simply pardon. The reality is we live in a "do what I tell you because I can pardon you if the courts don't like it."

The only thing holding Trump in  check should he act illegally is impeachment. I don't see that happening.

federal judges have summary contempt power over those under their jurisdiction (e.g., parties, witnesses).  A judge can simply order the US Marshal to take the SOS or the SSA Commissioner into custody.  No need for a formal prosecution.  

drummerboy said:

the only reason I think it's more likely to fail is because SCOTUS will not think this is a big enough issue to issue an expansive supporting decision that would be very controversial, and it will allow them to say "see? we stood up to Trump! please respect us.".

They will save the big guns for more important issues.

But any argument that says they'll do it because it's the correct thing to do in terms of jurisprudence kind of ignores what this court has been doing.

And doing it so as to follow precedent? Really? This court? They clearly treat precedent as a minor inconvenience, and will ignore it at will as the need arises. As they have already done and will continue to do.

I guess my point is that I think attributing good faith to this court is kind of naive. Everything they do looks at politics first, then the constitution.

not naivety.  Just a bridge too far even for these folks.  

hope you're right.

Steve said:

federal judges have summary contempt power over those under their jurisdiction (e.g., parties, witnesses).  A judge can simply order the US Marshal to take the SOS or the SSA Commissioner into custody.  No need for a formal prosecution.  

Good to know.

But still, enforcement power sits with the executive branch. U.S. Marshals are an agency of the justice dept which can refuse a custody order.

Who will they listen to? A judge or those who pay their salaries with a chief executive who has the power to pardon any action?

Bannon once said that we'll appoint judges who see our point of view but even if not we'll blow the courts off. Vance said we may defy them.

https://www.washingtonpost.com/opinions/2025/01/01/roberts-vance-court-orders-trump-constitution/

It could be part of the overall strategy. Executive orders are easy to crank out. The courts are a much more deliberative body, follow a schedule and have limited capacity to review things. They can issue a stay or injunction but yeah, where lies their enforcement power?

mrincredible said:

It could be part of the overall strategy. Executive orders are easy to crank out. The courts are a much more deliberative body, follow a schedule and have limited capacity to review things. They can issue a stay or injunction but yeah, where lies their enforcement power?

There's a dark path where ignoring the courts + violent extremists immunized by the pardon power = scary times ahead. I think that's probably not the probable path, but it's not great that it's not the kind of scenario we can dismiss out of hand.