14th Amendment probably headed to court

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Recall, when SCOTUS ruled against Colorado’s attempt to enforce the insurrection clause, the court held that the insurrection clause was unenforceable, because Congress had never passed enforcing legislation, as section five of the amendment requires.

The “border czar” wants to take the birthright citizenship clause to court too.

“I think that’s up to the courts, I think it needs to be held by the Supreme Court,” Homan told anchor

“I kind of disagree with you, I don’t think it’s enshrined in the Constitution at all – not the way I read it,” Homan replied. “But then again, I’m not a constitutional scholar. We’ll let the courts decide that on the birthright citizenship.”

Going to court to have birthright citizenship tossed is a lot easier than trying to get an amendment passed to change the language of the 14th.

https://www.msn.com/en-us/news/politics/trump-s-border-czar-doesn-t-believe-birthright-citizenship-is-enshrined-in-constitution/ar-AA1w8aIP?ocid=hpmsn&cvid=ae170641345449eac1e39faa9c0853aa&ei=31

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I have a wager with Ms. Wolf that in the next 4 years, this textualism Supreme Court will rule that something in the U.S. Constitution is unconstitutional.

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I have a wager with Ms. Wolf that in the next 4 years, this textualism Supreme Court will rule that something in the U.S. Constitution is unconstitutional.

I would not be surprised. So far, TFG has said he would only eliminate birthright citizenship, for people born in the future. That would be in line with the Constitutional prohibition of “ex post facto” laws. But, if SCOTUS rules the citizenship clause invalid, because Congress did not pass enforcing legislation, does that mean that all the generations of people born over the last century, who assumed they had citizenship, do not, because the clause is unenforceable?

Steve

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IF it goes before SCOTUS, the argument will be around “and subject to the jurisdiction thereof”.

Pro-birth right will argue you are in the country (illegal or legal), therefore you are subject to its laws. Kind of weak, I travel to a foreign country on vacation I’m subject to it’s laws be it doesn’t make me a citizen there.

Anti-birth right will argue that you must fall under the power/control of government. Draft, taxes, whatever (not sure what they’d argue). Kind of the opposite of being an ambassador from a foreign country, we can only expel them and not much else.

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That has been the narrative so far. That “subject to the jurisdiction thereof” was so that the spawn of foreign diplomats, who enjoy “diplomatic immunity” from USian laws, would not be citizens.

But look at Justice Barrett’s opinion in the Colorado case. She agreed with the rest of the majority that Colorado did not have authority to prohibit someone being on the ballot, but she dissented in the majority’s use of section five to declare the insurrection clause invalid. She said the court did not need to go that far, to decide the case. If there is no act of Congress to enforce the citizenship clause, it is just as invalid as the insurrection clause. Going to SCOTUS, the same SCOTUS that decided the Colorado case, with that “no enforcing legislation per section five” argument, would be a slam dunk. We would then revert to the citizenship law passed by Congress a few months before the text of the 14th was passed.

Be it enacted . . . , That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

https://constitutioncenter.org/the-constitution/historic-document-library/detail/civil-rights-act-of-1866-april-9-1866-an-act-to-protect-all-persons-in-the-united-states-in-their-civil-rights-and-furnish-the-means-of-their-vindication

That “not subject to any foreign power” would eliminate anyone whose parents were foreigners, thus subject to a “foreign power”.

Steve

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If you travel to the US on vacation it doesn’t make you a citizen here either, but you are subject to our laws. If you vacation here and have a child, the child is also subject to our laws, which means they get all the rights of citizenship.

Diplomats and their children are specifically exempted from our jurisdiction (in most cases) so children of diplomats do not qualify for birthright citizenship.

Anti-immigration organizations argue that illegal immigrants are under the jurisdiction of a foreign power, hence their children aren’t under our jurisdiction either.

But if they aren’t under our jurisdiction, then they aren’t illegal and would have immunity similar to diplomats. So that’s a dumb argument.

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They may be subject to US law while they are here, but that is not what the Civil Rights act says. The Act says " not subject to any foreign power". Example, “Roberto” is a citizen of Venezuela, but he is in the US. The Venezuelan government drafts “Roberto” into the Venezuelan army, and issues a warrant for his arrest when he does not report for duty. “Roberto” travels to Venezuela to visit family, and is promptly arrested on arrival for draft evasion. The Venezuelan government could not do any of that to a US citizen, because USians are not subjects of Venezuela. Think of it as a “no such thing as dual citizens” clause. If you are born in the US, to US citizen parents, you are a US citizen. If you are born in the US, to citizens of any other country, you are a citizen of that other country, only. I’ll leave it to the legal eagles how mixed marriages, like Senator Cruz’s parents, would work out: always the citizenship of the father, always the mother, or declared at birth.

For those who missed it, a pair of twin babies, a few months old, were recently deported with their “illegal” mother, rather than kept with their US citizen father. The twin babies were born in the US. Both the “border czar” and TFG have said the way to not separate families is to deport the entire posse, which implies deporting US citizens who had committed the “crime” of having any connection to an illegal.

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Then TIG is not eligible be President–per that interpretation. His mother was subject to the jurisdiction of Scotland, so he is not a “natural born citizen” of the US. Deport the lot of them.

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Nice try, but nope.

Though the 1940 census form filed by Mary Anne and her husband, Fred Trump, stated that she was a naturalized citizen, she did not actually become one until March 10, 1942.

TFG was born in 46, so, at the time of his birth, she was a US citizen.

I’m still waiting for INS to koff up the report I ordered last July. I’m pretty sure my father was born after his parents were naturalized, but I want to have all my papers in order.

Steve

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Did she revoke/disavow her Scottish citizenship? If not, then she was still “subject to the jurisdiction” of Scotland. So TIG is not a “natural born” US citizen.

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Yes. The oath taken by naturalized US citizens.

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

Steve

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And if the other company doesn’t recognise you as a citizen due to you parents citizenship? You have none?

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Unless you formally renounce your citizenship to the other country, they don’t really care about the oath you took, so they still consider you a citizen. Some places will require proof that you renounced formally to your previous country

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USian policy, these days, is about exclusion, not inclusion. What another country thinks of a person is immaterial.

This is true. Apparently, Argentina considers you a citizen for life, regardless of your wishes. So, no naturalized US citizens at all? There are some Shinies who are so xenophobic, they would be OK with that, heck they would praise the elimination of naturalization entirely. Some 70% of legal US immigration is via “chain migration”. I have heard some Shinies advocate for the elimination of chain migration.

Check out this anti-immigrant screed, from the Dept of Homeland Security, dated 2018, and “last updated” 1-20-21. Being from DHS, gives this position the color of official US policy.

Steve

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One area where I could see the rule/law redrawn is around people that are here on vacation (birth tourism) and for those here “illegally.” Note, most undocumented are not here illegally but are instead here awaiting their hearing - their children should be protected regardless but I could see the others potentially losing their rights.

Edit: I will add that I don’t necessarily agree with that outcome but I see it as possible. Frankly, I think we should be very welcoming to anyone that has either the means (money) to get here for birth tourism or the will to get here for the desire to earn a living.

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Where is the real Hawkwin? That sounds like some sort of “America hating” pinko screed! :slight_smile:

Rationing access to the US by ability to pay is, of course, the Shiny way. As for the people here waiting on a hearing date. I am pretty confident we will see a return to the “stay in Mexico” policy. And, rather than increasing funding for immigration courts, to expedite hearings, I would expect the courts to be defunded, so that people never have a hearing. Because the objective is to keep people out of Shiny-land.

Steve

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That might work for new arrivals but we are not going to forcibly remove those already here awaiting their hearing. Not only would it face numerous court challenges, it would be logistically impossible.

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TFG has promised to deport all illegals. Seems that would include those waiting on a hearing. Recall, when someone pointed out the Haitians, the ones supposedly eating family pets, had legal status, TFG said he did not recognize that legal status.

"It has nothing to do with Haiti or anything else. You have to remove the people, and you have to bring them back to their own country,” he said.

The previous Trump administration tried to revoke TPS status for people from Haiti, El Salvador, Honduras, Nicaragua, Nepal and Sudan in 2017 and 2018.

The public face of the incoming administration is to find as many excuses as possible to get rid of as many “others” as possible.

Steve

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Ya, he makes a lot of boasts and claims that he never can accomplish or that are divorced from reality.

People here awaiting a hearing are not here illegally regardless of any claim by the future POTUS.

And because I missed this bit prior, it isn’t pinko - it is capitalism. As a capitalist, I want immigration from both the wealthy (birth tourism) and from the driven and willing (people willing to travel thousands of miles to start over here). I am not personally motivated by any humanism on this particular topic.

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There is always “Plan Steve” to force Proles out of school and retirement, and back into the workforce. That eliminates any need for “others” to be let into the country. The “JCs” I worked for made it clear where they stood on “work life balance”, “work to live”, or “live to work”. Clearly, Prole’s only function is to work until he drops, to make the “JC” richer.

It was offered with tongue firmly in cheek.

Steve