14th Amendment is in the News

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14th Amendment is in the News

Postby sunglasses » Tue Oct 30, 2018 3:43 pm

The 14th Amendment was ratified in 7/9/1968 as one of the Reconstruction Amendments. Section One, in particular, was written to protect and give citizenship to the children of the now freed slaves.

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


The comment was made by the 45th president during an interview on Axios on HBO that he plans on targeting this passage of the 14th with an executive order.

Trump told "Axios on HBO" that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said, declaring he can do it by executive order.
When told that's very much in dispute, Trump replied: "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order."
"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits," Trump continued. "It's ridiculous. It's ridiculous. And it has to end." (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)


So, this could be an issue coming up. Apparently the 14th wasn't used to give status to children of undocumented immigrants until the 1960s, so there can be a viable legal challenge. Although, SCOTUS has already ruled that children born to immigrants who are legal permanent residents are citizens. There has been no court ruling on the children of undocumented immigrants or the children of immigrants on a temporary visa.

If there was a legal challenge via SCOTUS, I would accept the validity of the change. I'm less pleased with an executive order changing a constitutional amendment. If EO's can change constitutional amendments then the 1st or 2nd could easily be changed as well.
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Re: 14th Amendment is in the News

Postby Absentia » Tue Oct 30, 2018 4:05 pm

That first clause of the 14th Amendment is about as clear and unambiguous as you can get. I would be floored if Trump could find any court willing to accept his argument, let alone a Supreme Court packed with conservatives who pride themselves on adhering to the letter of the Constitution even if they are willing to shit all over the spirit.

sunglasses wrote:If there was a legal challenge via SCOTUS, I would accept the validity of the change. I'm less pleased with an executive order changing a constitutional amendment. If EO's can change constitutional amendments then the 1st or 2nd could easily be changed as well.


He can't "change" constitutional amendments with an EO, obviously. But in the absence of a definitive court ruling he can creatively reinterpret them. At which point he would be sued in federal court and get his ass kicked, and any court order would override his EO.

In short, this sounds like a total nonstarter.
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Re: 14th Amendment is in the News

Postby ftl » Tue Oct 30, 2018 4:26 pm

Absentia wrote:That first clause of the 14th Amendment is about as clear and unambiguous as you can get. I would be floored if Trump could find any court willing to accept his argument, let alone a Supreme Court packed with conservatives who pride themselves on adhering to the letter of the Constitution even if they are willing to shit all over the spirit.

In short, this sounds like a total nonstarter.


I wish I could be as confident as you. It's a supreme court packed with conservatives, so I'm a lot more worried that they'll rule against minorities no matter what the constitution says.
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Re: 14th Amendment is in the News

Postby cmsellers » Tue Oct 30, 2018 5:01 pm

Marc Randazza has an amusing take on this over at PopeHat.
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Re: 14th Amendment is in the News

Postby Crimson847 » Wed Oct 31, 2018 12:03 am

It's a court packed with conservatives...conservatives just like Paul Ryan and Chuck Grassley, who have expressed that they don't think Trump can legally do this.

https://www.nationalreview.com/news/gra ... amendment/

The pre-Trump conservative establishment (the wing of the party that picked pretty much all of those conservative judges) seems to be somewhat split on the question of whether the 14th Amendment mandates birthright citizenship, with some arguing that the commonly understood legal meaning of "subject to US jurisdiction" in the 1860s would have excluded illegal immigrants and their children because the parents still nominally bear allegiance to a foreign government, and others rejecting the idea. Regardless, both camps seem more or less united in the conviction that Trump cannot end birthright citizenship by executive order, because there's a Congressional immigration statute from the 1950s that echoes the 14th's language, and by then the meaning had definitely changed to the modern version. Consequently, even the side that believes the Constitution does not require birthright citizenship believes an act of Congress is required to eliminate it--an executive order would still be insufficient.
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Re: 14th Amendment is in the News

Postby cmsellers » Mon Nov 05, 2018 2:49 am

The National Review has two articles partially and totally supporting Trump's claim.

This one argues that birthright citizenship was not established by the 14th Amendment because it was only intended to apply to persons under the "'complete' jurisdiction, as in 'not owing allegiance to anybody else,'" as described by two of the authors of the Fourteenth Amendment. The author claims that after the Civil War and prior to US v Wong Kim Ark, children born to legal residents of the US were not understood to be citizens, and actually says that that case was decided wrongly.

But even if it had been decided correctly, he argues, it was derived from British common law rather than the Constitution, and therefore only applies to "aliens in amity," that is aliens living here peacefully and not breaking our laws, because that is how British law works. Except that before Britain revoked birthright citizenship, it also applied to illegal immigrants, and Wong Kim Ark was very definitely based on the plain meaning of the Constitution. This fanciful revisionist legal history is roundly praised by the commentariat of NRO for cutting out the BS and getting to the real issues.

The other article goes even further, and argues that Trump not only can end birthright citizenship by executive order but has a duty to do so. He claims that the interpretation that children born to foreign nationals owe their allegiance to the US and therefore are not subject to its jurisdiction is "obvious," and that this obvious interpretation also applies to the Immigration and Nationality Act of 1952, since one of the drafters explicitly said that the bill "restates the former definitions in accordance with existing law and the most recent decision of the Supreme Court of the United States," which would presumably uphold Wong Kim Ark (which he implies but does not state was wrongly decided), but not apply to children of illegal immigrants which WKA was silent on. And because this is the only reasonable interpretation of the law in his view, Trump has a positive duty to restore Congress's original intention and end birthright citizenship for illegal immigrants.

To their credit, nearly all of the commentators on NRO call the second author out on his historical revisionism. So it appears that for reluctant Trumpers, saying WKA was wrongly decided and doesn't apply to illegal immigrants anyways because it didn't in British common law is fine, but saying Trump can and should impose this interpretation through executive order is a bridge too far.
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Re: 14th Amendment is in the News

Postby Krashlia » Mon Nov 05, 2018 11:06 am

If the Supreme Court is not of the Opinion that this is nothing less than the usurpation of the powers of legislature, we're kinda screwed.
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Re: 14th Amendment is in the News

Postby CarrieVS » Mon Nov 05, 2018 1:51 pm

"Obvious" is a tricky little word. It has an unfortunate tendency to slip from "I don't need to explain this because you'll understand why yourself" into the realms of "I can't explain this but it feels right to me."
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Re: 14th Amendment is in the News

Postby Kivutar » Tue Nov 06, 2018 1:14 am

cmsellers wrote:This one argues that birthright citizenship was not established by the 14th Amendment because it was only intended to apply to persons under the "'complete' jurisdiction, as in 'not owing allegiance to anybody else,'" as described by two of the authors of the Fourteenth Amendment.


Now I don't know jack about US law, but if that's so, wouldn't it make things sticky for dual citizens?
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Re: 14th Amendment is in the News

Postby cmsellers » Tue Nov 06, 2018 2:16 am

Kivutar wrote:Now I don't know jack about US law, but if that's so, wouldn't it make things sticky for dual citizens?

The US does not acknowledge dual citizens, and requires people being naturalized to renounce their other allegiances. In practice this isn't enforced and I know people who have kept their British passports, but the law is on the books.
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Re: 14th Amendment is in the News

Postby Krashlia » Tue Nov 06, 2018 2:50 am

cmsellers wrote:The US does not acknowledge dual citizens, and requires people being naturalized to renounce their other allegiances. In practice this isn't enforced and I know people who have kept their British passports, but the law is on the books.


Today I Learned: US immigration and citizenship is like the Prince Mytho from Princess Tutu "Promise to love only me, and hate everyone else!"

EDIT: Misunderstood cmsellers statement.
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Last edited by Krashlia on Tue Nov 06, 2018 8:24 am, edited 2 times in total.
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Re: 14th Amendment is in the News

Postby Kivutar » Tue Nov 06, 2018 4:43 am

I know plenty of people who have citizenship in both Canada and the US, most but not all of whom were born in the US. How would that play out for their children, then? If this happened, theoretically could their children be denied US citizenship on the grounds that they hold Canadian citizenship as well?
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Re: 14th Amendment is in the News

Postby cmsellers » Tue Nov 06, 2018 4:55 am

Kivutar wrote:I know plenty of people who have citizenship in both Canada and the US, most but not all of whom were born in the US. How would that play out for their children, then? If this happened, theoretically could their children be denied US citizenship on the grounds that they hold Canadian citizenship as well?

No. The US does not recognize dual citizenship, as in it makes no special accommodations for it, but it does not prohibit US citizens from acquiring the citizenship of another country, either by birth or by naturalization.
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