Citizenship

Denaturalizing Natural-Born Citizens

Why Hoda Muthana Can't Be Kept Out of the United States

|The Volokh Conspiracy |

Hoda Muthana was born in 1994 in Hackensack, New Jersey. The United States issued her a passport in 2005, which it later renewed. At the time of the first issuance, the government raised some questions as to the previous diplomat status of her Yemeni father, which were resolved to the government's seeming satisfaction.

In the aftermath of Muthana joining ISIS in Syria in 2014, the position of the U.S. government is not only that Muthana is not only that she is not a U.S. citizen, but that she was never one. Secretary of State Mike Pompeo has stated on the record that she is not a citizen and has no right to enter the United States, which President Trump tweeted conforms to his instructions to Pompeo not to allow her in. As a result, she and her young son are stuck in a Syrian refugee camp even though she is willing to face legal consequences in the United States for her role in ISIS. More details about the timeline can be found here. Her father has filed a complaint on her behalf, which is here.

My coauthor Cassandra Robertson and I have expressed concerns about denaturalizations and denationalizations in the United States for some time. In an article that is forthcoming in the New York University Law Review, we pointed out that the Trump administration's attempts to take away citizenship are unlikely to stop with naturalized citizens. Hoda Muthana's case further confirms our fears.

Steve Vladeck explains some of the legal issues involved in her case here. Jonathan Shaub adds his own analysis, including a discussion of the differences between the U.S. and the U.K. approaches–and how Muthana's case might be different from that of British citizen and alleged ISIS member Shamima Begumhere.

One issue worth highlighting beyond these informative posts is that of equitable estoppel. Hoda Muthana's father's complaint argues that if there had been lingering problems with the father's diplomat status when Hoda Muthana was born, the government had an obligation to say so at the time. Had it done that, the family would have applied for permanent residence for Muthana (as opposed to birthright citizenship) the same way it had done for her older siblings. The complaint states:

The United States definitively represented to Plaintiff that Ms. Muthana was a United States citizen when it issued her a passport.

Plaintiff and his daughter relied on the representation by the United States that his daughter was a United States citizen, and as a result did not take further action to procure or clarify her status in the United States.

Reliance on the issuance of a United States passport, issued by the United States government, was reasonable on the part of Plaintiff and Ms. Muthana.

It would be difficult to deny that these facts meet the three prongs for equitable estoppel (which are definite representation, reliance, and reasonableness of reliance). The Trump administration's run-ins with principles of estoppel in this area are not limited to alleged terrorists. The government has recently sought to denationalize (at times middle-aged) U.S. citizens born near the border to Mexico by claiming that they lied about which side of the border they were born. In one case, a woman born in a farmhouse in the 1970s as far away from the border as Kansas was recently denied a passport because her birth certificate was not deemed sufficient documentation of her citizenship.

The courts need to draw a line as to how long the government has to question the validity of a birth certificate or passport. Birthright citizenship does not cease to exist because someone committed a crime or became inconvenient to the state for any other reason. And if the government wishes to remove citizenship on rare grounds such as treason, it can only do so with the due process of law–rather than fiat by tweet.

NEXT: Second Amendment Rights of Young People

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  1. I wish society expended at least 1 billionth the energy discussing why it’s suddenly become okay within the past month to literally murder someone who has just been born, that they do worrying over an ISIS member not getting a ticker tape parade home.

    1. Your devotion to enslaving pregnant women in your cause is about as useful as wishing to tell 330M people how to think.

      Fuck off, slaver.

      1. ?? If she’s just had a baby, she’s no longer pregnant.

        1. You think the enslavement never exists? or that it begins after birth? or that it ends at birth?

          1. You think that adoption doesn’t exist?

          2. So you think that women can kill their child any time after it’s born? Or is there a cut-off date? If so, when is that?

            No one is enslaving women. Women made conscious decisions to spread their legs and voila! She’s knocked up. She’s only enslaved to her own decision making. And anyone who can’t see that is a blithering moron who has no business polluting the gene pool.

            1. Women made conscious decisions to spread their legs and voila! She’s knocked up. She’s only enslaved to her own decision making.

              Love how the man ain’t involved at all.

              Screwed by having a uterus!

              1. You’d think he’d rejoice over another immaculate conception, as opposed to sneering about the gene pool…..

              2. I Callahan : Women made conscious decisions to spread their legs and voila! She’s knocked up. She’s only enslaved to her own decision making.

                Sarcastro : Love how the man ain’t involved at all.

                🙂 Not one of your smartest rejoinders.

                When it comes to post birth enslavement the man loses his options at the leg spreading stage. The woman gets the better part of a year after that to contemplate her enslavement and avoid it.

                1. post birth enslavement the man

                  LOL.

                  1. moi : post birth enslavement the man

                    Sarcastro :LOL

                    Interesting response from someone who declared only a few threads ago that No True Feminist could support equal rights for women, without accepting equal responsibilities for women.

                    Accepting for the sake of argument a ab abc abcd abcde abcdef ahf’s characterisation of a woman’s legal obligation to care for her child post birth as “enslavement” – talk me through why the father’s equal obligation is meh-worthy.

                    1. Your premise is what I’m laughing at, not your thesis.

                      I also think you’re misreading the timeline of abc’s enslavement argument.

                    2. 1. what premise ?

                      2. I didn’t find “or that it ends at birth?” particularly ambiguous. What other construction do you put on it, other than that abc’s timeline of female enslavement extends beyond birth ?

                    3. 1. The whole parenthood as slavery thing, but especially as oriented towards men.

                      2. ‘Your devotion to enslaving pregnant women in your cause’ tells me abc’s thesis is about forced pregnancy being slavery, not forced motherhood.

                    4. 1. Not my premise, abc’s. I agree it’s an exaggeration, but you didn’t LOL it when abc used it in re women, and you confirm your lack of LOL in re women with “especially as oriented towards men.” So walk me through why a mother’s obligation to look after her child, after it is born, doesn’t get an “especially” while a father’s does. Despite your own No True Feminist feminism.

                      2. You kinda skidded by “or that it ends at birth?” Although that was the bit I specifically quoted. Have another go.

                    5. 1. OK then, we can both agree that abc’s rhetoric is amusingly overblown. But was that your entire point here? Because the whole thing with men being as on the hook as women is still LOL for me.

                      2. I saw that part, but his(?) OP is all about pregnancy-as-slavery, which makes your limitation to ‘post-birth’ slavery goalpost moving you really don’t need to do given the layup you were trying for.

                    6. I saw that part, but his(?) OP is all about pregnancy-as-slavery, which makes your limitation to ‘post-birth’ slavery goalpost moving you really don’t need to do given the layup you were trying for.

                      I’m not moving any goalposts.

                      Ignoring diversions, the conversation went :

                      1. Amos : ” it’s suddenly become okay within the past month to literally murder someone who has just been born
                      2. abc : “Your devotion to enslaving pregnant women”
                      3. TIP : “If she’s just had a baby, she’s no longer pregnant”
                      4. abc : “You think the enslavement never exists? or that it begins after birth? or that it ends at birth?”
                      5. I Callahan : “So you think that women can kill their child any time after it’s born? Or is there a cut-off date? If so, when is that?. Women made conscious decisions to spread their legs and voila!…”
                      6. Sarcastro : “Love how the man ain’t involved at all.”

                    7. Thus Amos specifically started with “post-birth” events. abc responded with the standard “pregnancy is slavery” line, to which TIP pointed out that post-birth, the time Amos had mentioned, the pregnancy was over. At which point abc doubled down with “or that it ends after birth?” line, plainly extending the concept of female slavery from pregnancy to the post-birth period. The remainder of the conversation proceeds from there, including the I Callahan remark about killing children after they are born, to which you replied.

                      Consequently, after abc’s doubling down to extend pregnancy is slavery to a mother’s child care responsibility is slavery, the whole threadlet has been about female slavery in motherhood, post birth.

                    8. It’s obviously true that “female slavery in pregnancy” cannot be experienced by men, because biology. But “slavery in motherhood” can be, and legally is, fully and equally matched by “slavery in fatherhood.”

                      Which brings us back to

                      Sarcastro : Because the whole thing with men being as on the hook as women is still LOL for me.

                      Which is perfectly reasonable addressing pregnancy. But totally nuts when addressing the question of live children. Which is what Amos started the thread about and into which abc dragged the concept of slavery.

                    9. “But totally nuts when addressing the question of live children. Which is what Amos started the thread about”

                      No, Amos started talking about murdering people, and murdered people are definitionally not live.

            2. No one is enslaving women. Women made conscious decisions to spread their legs and voila! She’s knocked up. She’s only enslaved to her own decision making. And anyone who can’t see that is a blithering moron who has no business polluting the gene pool.

              I love it when right-wingers talk voluntarily about gender, race, sexual orientation, and similar issues — mainly because I tend to prefer that Republicans lose elections.

              Keep talking, clingers — some educated, modern young people who are developing lifelong voting patterns might not have completed forming opinions about the Republican Party, conservatives, and faux libertarians yet.

              1. It is known that you want the rest of society to be as moronic as you are. So that you don’t feel so inferior. Your commie education system has ensured that.
                Enjoy Idiocracy, you’ll fit right in.

                1. commie education system

                  anti-intellectualism plus old-style redbating, together at last.

          3. So, the baby, after it is born, is capable of enslaving the mother? Nice drugs you use.

          4. Furthermore, the penalty for attempted enslavement after immediately being born is death? Not even a trial? What a brave new world you envision.

        2. “If she’s just had a baby, she’s no longer pregnant.”

          Maybe there were twins… one in, one out.

      2. People representing democrats nationwide just voted to allow the deaths of those who have been born ie identical to any other baby. Ny voted to allow killing up until birth ie people with biologically fully formed bodies and nervous systems and could survive outside, only needing vague weak reasons such as ’emotional’ needs. These developments to the MSM are apparently barely worthy of consideration next to poor ISIS members or trump pinching some model’s buttocks.

        I’m curious for you or anyone else to explain (logically) how I’m the bad guy in all this and how this should not be considered evil to those adhering to morality systems where a mother shouldn’t be allowed to kill her children ie they’d think it’s a crime and be disgusted if someone decided to one day to stab her 10 year old to death. If your okay with the above on the other hand just say so.

        Well I’m waiting…

        1. You’re rude to hijack an unrelated article. It also shows how little confidence you have in your own argument.

          From what I have read of the new law, it does nothing of the sort that you imagine or get sweaty over. Hyperbole, lack of confidence, rude, what else is there to say? I came to this article for the article itself, not to pander to your rude weak faith.

          Fuck off, slaver.

          1. I dismissed the topic of the article which is a lot more ontopic than the average kirkland post. Not that I mind but you’re the one that made the first post exclusively focused on abortion.

            I’ll show you how much confidence I have in my argument. Here is the text of the law

            https://tinyurl.com/y8zqq7yb

            please point out anything that invalidates the factual statements I’ve made.

            Here is a quote from rightwing snopes that backs up what I’ve said.

            >>>>>>>>>>>>>>>>>>
            Currently, late term unborn children are protected in New York State law after 24 weeks except to save a mother’s life. RHA would repeal that standard and exchange it for a “health” exception, broadly interpreted by courts to include age, economic, social and emotional factors, rather than the biological definition of “health” that normally comes to mind.
            >>>>>>>>>>>>>>>>>>

            Keep in mind not only doctors but now generic ‘medical practitioners’ can exercise this rock solid ‘discretion’ that is pretty much the only real barrier left to killing a viable fully developed person.

            Now here is an article from archconservative WAPOO confirming what I wrote about Dems voting to allow born children to die

            https://tinyurl.com/y65dgg54

            Please point out where it shows I was mistaken to say that. Tale your time, I know you’ll be eager to crib some of the assorted excuses they have listed in there.

            1. “Dems voting to allow born children to die”

              Take it up with God. He’s the one who decided that all people who are born must die.

          2. I’d say your language makes you the rude one. You’ve repeated the same phrase twice, so perhaps it’s a tic rather than evidence of how little confidence you have in your argument.

        2. “People representing democrats nationwide just voted to allow the deaths of those who have been born”

          Plus they’ll be taxed. Death and taxes, “allowed” to happen!

      3. Fuck off, murderer.

      4. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.
        >>>>>>>>>> http://www.payshd.com

        1. It’s a sad state of affairs when these posts are an island of sanity
          (and I could use a brand new BMW)

          1. Do you want to follow someone claiming that $6474 will buy a brand new BMW, or a ab abc abcd abcde abcdef ahf?
            Yeah, tough choice, right?

            1. The BMW web-bot was so much more – well – human than a ab abc abcd abcde abcdef ahf

              And we all are looking for that sense of humanity, right?

    2. Note to comment or: I regularly argue that there is no constitutional difference between an extraterritorial alien and a viable fetus, as both are human beings to whom the Supreme Court has held the Due Process Clause lacks application (“extraterritorial application” in the one case and “prenatal application” in the other, and also on the fact that it’s perfectly constitutional to kill both when the relevant authorized decision-maker decides to. And I argue that the fact that for aliens the decision-maker is Congress through the war power and for fetuses it’s an individual shouldn’t really be considered all that important for how we regard what they ARE ontologically, sub specie constitutionalis, nor for what should be considered moral regarding how we behave towards them.

      Nonetheless, I generally wait for posts where this comparison is relevant, and also make a legal claim of comparability based on the texts of the relevant court cases and constitutional provisions, rather than simply barge in to a post on another subject and assert this comparability as an absolute and self-evident truth.

    3. “Hey, let’s ignore the topic of the article and instead throw a smoke bomb in the discussion complaining about abortion”.

      1. From my morning talk radio, it appears to be the talking point of the day.

        Dunno how much traction it’s getting beyond the usual suspects though.

        1. And no, I don’t mean the posters here are getting literal talking points, only that GOP messaging is strong and well-reflected by it’s supporters.

          1. That’s how you guys always do these slippery slope things, man.

            “No compulsory gay marriage, we swear!”

            “No abortion after birth, we swear!”

            But it never fails.

            1. Waitaminute. Do you think the real liberal agenda is pro-infanticide? Because maybe check into things more, reading opposing sources and the like if you think that’s what’s going on here.

              Others here are all about cartoonishly vilifying their political opposition, but I don’t think you’re that far gone.

              1. Yeah, actually it IS pro-infanticide, in the sense that the left doesn’t want any legal obstacles to infanticide. “Legal, safe, and rare” has evolved to “legal, safe, and a secular sacrament”.

                1. Sarcasto is shocked that we judge his side by their actions.

                  1. FWIW, you and Brett going all in on the Dems being monsters I am unsurpised by.

                    A bill about infants who ‘survive abortion’ is so obviously just about gathering this talking point.
                    Late-term abortions are rarely about convenience, an in an area so often fraught with medical necessity and chilling a doctor’s discretion would be dumb if I thought the GOP had any thoughts about the bill passing.

                    Interestingly, though, I’m not seeing this get as much mainstream play as other abortion theatrics of the past. I wonder if the issue is becoming stale.

                    1. NY and Vermont have legalized abortion at any time for any reason. Similar bills are being pushed by the death lobby all over. Northam in Virginia let the mask slip.

                    2. Bob – legalized abortion is not legalized infanticide. The way you can tell is no one is seeking to criminalize the mothers.

                    3. “The way you can tell is no one is seeking to criminalize the mothers.”

                      “mothers”?

                      So you conceed my point. Excellent.

                    4. “Late-term abortions are rarely about convenience”

                      Frequently asserted, seldom demonstrated. The problem here is that “medical necessity” has been watered down so much in the case of abortion that it effectively IS convenience. Literally, an abortion can be declared “medically necessary” on the basis that the woman would be upset if she had to give live birth.

                      It’s not that the issue is becoming stale, so much that the MSM have chosen their side, with a vengeance, and are barely even pretending otherwise these days.

                    5. “Frequently asserted, seldom demonstrated.” Clearly, then you have documents demonstrating that late term abortions are performed for convenience. The documentation that your assertion is incorrect is available at the CDC and in the medical literature. I look forward to the sources of your information!

                    6. I can demonstrate that the law in a number of states permits doctors to declare late term abortions “medically necessary” for trivial reasons. Record keeping in this area is, intentionally, rather scant.

                      But the fact that the laws keep being written to so that trivial reasons will suffice is damning enough. They’re not doing that so that women can get abortions to save their lives, obviously.

                    7. “Frequently asserted, seldom demonstrated.” Clearly, then you have documents demonstrating that late term abortions are performed for convenience.

                      Clearly, you shouldn’t so pathetically try to shift the burden of proof.

                    8. I think the burden should be one the side arguing it’s somehow convenient to go most of the way through a pregnancy and make the abortion more difficult.

                    9. “The problem here is that ‘medical necessity’ has been watered down so much in the case of abortion that it effectively IS convenience. ”

                      How many have you performed, doctor?

                2. ” the left doesn’t want any legal obstacles to infanticide.”

                  Don’t be an infant.

              2. “Do you think the real liberal agenda is pro-infanticide?”

                Based of statements from Gov. Blackface and others, the left talking point is that the state should not be involved in decisions that parents and doctors make, even after birth. So yes. And if I were the moderate left, I would be doing all I can to make it damn clear that the right to elective late-term abortion doesn’t extend up close to labor, or after birth. But that’s not what you’re doing.

                1. Saying that doctors need discretion and not to be doing needlessly defensive medicine because of the right’s need to push a stupid talking point is not the same as being for killing babies, TiP. You have the perspective to believe the left’s understanding may not be your own.
                  Don’t go down the other is a monster side road. You’re better than that talk radio-type trash reasoning.

                  1. Sarcastro, you remember Kermit Gosnell, right?

                    He was getting referrals from Planned Parenthood. For women who were close to giving birth! He kept at what he was doing long after he should have been stopped, because people who were supposed to be regulating abortion knew what he was doing, and approved of it, and were shielding him.

                    You need to face it: The “pro-choice” movement has fanatics in it, who are all in for elective abortion right up to the moment of birth, and some undefined time after. And they’re running the movement.

                    And voting in legislatures.

                    1. people who were supposed to be regulating abortion knew what he was doing, and approved of it, and were shielding him.

                      Doctors with lots of shocking complaints skating by for way too long happens way more than it should, but THIS time it’s totally intentional because liberals love them some baby dismemberment.

                    2. We judge by actions, not words.

                      And given how regulated Doctors are, yes, Kermit Gosnell was obviously protected.

                    3. This is so fucking tedious. Nobody for a minute believes that all this virtue signaling reflects genuine emotions or concern. Just shut the fuck up, already.

                    4. obviously. Other doctors never get away with anything.

                    5. “Sarcastro, you remember Kermit Gosnell, right?”

                      That one guy was bad, so obviously everybody is bad.

                      Does that summarize your argument, or did I leave out a step?

        2. Haha. Sarcastr() does get his marching orders every day.

          1. It’s amazing how much adrenochrome $orosbux can buy these days!

    4. I hope one of the professors has a post on abortion-related developments, so I can have some choice (as it were) comments.

  2. Except she’s not a US Citizen…boom.

    1. This is what I am curious about. I can see arguments both ways; child of a diplomat? Apparently the feds didn’t think so when they issued her passport. It would be interesting to know more details of this.

      1. If it turns out her farther’s status was misrepresented then it seems her citizenship could be invalidated. But that is very fact specific.

        1. I am VERY uncomfortable with revoking an offspring’s citizenship, decades later, based not on any fraud on her part but on something her father allegedly did around the time of her birth.

          1. Me too. Especially because the entire rest of her family appears to have been naturalized (unless she has younger siblings), her mom before Hoda was born, so it’s hard to see how they could have been trying to get away with something by sneaking her in as a citizen.

            But it doesn’t really seem like there’s any allegations of fraud against her father in this case.

            1. We should err on the side of citizen rights. Let her in, charge her with treason, try her, then, if found guilty, execute her (I am not the first to suggest this, BTW).

          2. I’ve very uncomfortable with aliens being allowed to naturalize their otherwise ineligible children through fraud. The child may not be to blame, but certainly neither are the American people.

            1. Where have you seen any allegations that there was fraud involved?

              1. I haven’t; I was responding to what Dilan Esper wrote in their comment.

          3. Well, yes, but noting that she never had citizenship is not the same thing as revoking citizenship.

            1. Deciding that she never had citizenship 15 years after deciding that she did is pretty much the same thing as revoking citizenship.

              1. I can see how they have a similar feel to them, but they are legally different, in the same way that terminating a contract and rescinding it are different.

                1. DMN – they are certainly substantively different as to the facts alleged, but do you know if they both require roughly the same thresholds of proof and due process in a hearing?

      2. I would have been more receptive to the legal arguments if not for the childish “fiat by tweet” comment.

        1. But the legal arguments were actually made by the Obama administration when it revoked her passport because it determined that she wasn’t a citizen.

      3. You are placing to much on the granting of the passport. They accept, in most cases, the information on your application as valid and reserve the right to revoke it at any time. The fact she got one does not mean they verified everything on it and are endorsing it as valid.

        1. You can use a passport to prove citizenship when you get a job. You’re saying a passport doesn’t prove the nationality of the holder when it’s validly issued?

          1. It’s evidence of citizenship ? though saying “validly issued” begs the question ? but issuing a passport to someone doesn’t make him/her a citizen.

            1. “though saying ‘validly issued’ begs the question”

              No, David, it limits the scope of the claim. I’m not claiming that a counterfeit passport proves anything.

              “but issuing a passport to someone doesn’t make him/her a citizen.”

              Nor did anyone claim any such thing.

              1. No, David, it limits the scope of the claim. I’m not claiming that a counterfeit passport proves anything.

                A counterfeit passport wasn’t issued at all. We’re talking about a passport issued in error. That would not be “validly issued.”

                Nor did anyone claim any such thing.

                You did. Please try to keep up.

                1. “We’re talking about a passport issued in error.”

                  Speaking of begging the question…

                  Nice try using the “we’re talking about…” when you’re referring to what I said.

                  “but issuing a passport to someone doesn’t make him/her a citizen.”

                  You’re claiming that I said this, or anything like this, even after being corrected? How the hell did you pass the LSAT?

  3. “a ab abc abcd abcde abcdef ahf’ calls someone rude and signs his note with profanity. That’s the pot calling the kettle black, as they used to say.

    1. Yes, I get quite rude to slavers.

      Fuck off, slaver.

      1. Fuck off, murderer.

        1. Fuck off, mendacious virtue signaller.

    2. We call it alphabet troll over at Reason.com

      1. As opposed to here.

        How does the fact that you incorrectly apply the word “troll” prove anything?

    3. “a ab abc abcd abcde abcdef ahf’ calls someone rude and signs his note with profanity”

      It took me a while to figure that too (I had the same experience in a much earlier thread). Let me give you the benefit of what I learned : There’s a small sub-group of quasi-Libertarians who have developed a frat-boy-type toxic bro culture, complete with a litany of their own silly clubhouse sayings. They appear to be smugly impressed with themselves over this adolescent code-talk. To normal people they look like brat children, still seething with resentment ’cause Mommie forced them to eat their broccoli all those years ago.

      1. Libertarianism and revolutionary socialism attract folk with simiar personalities. There’s an urgent desire to knock down the corrupt institutions of society and replace them with a wonerful utopia that comes out of a book, where it works splendidly. Obviously the libertarian utopia is far less dangerous, but the personalities are similar. It has to do with low risk aversion, delight in ideas and corresponding lack of interest in practicalities.

        Ignore politics and consider the following exchange :

        “Why are you doing it that way ?”
        “That’s the way I’ve always done it.”

        If you think the answer is pathetic, then you have a libertarian / revolutionary socialist personality. If you think it’s a good answer, you’re a natural conservative.

        1. Are you trying to make “natural conservatives” sound like the worst type of people?

          1. No need. They tend to do that all by themselves.

          2. No, I’m just pointing out that natural conservatives and libertarians / revolutionary socialists have different personalities.

            A natural conservative will happily use a tried and trusted tool, if it has worked in the past, without any psychological need to understand why it works. Consequently he will starve to death when conditions change such that his tool no longer works. A libertarian / revolutionary socialist type will refuse to use the tool until he understands how it works, and will try to design a new and better one that lacks the problems of the old one. Consequently he will starve to death amost immediately.

            But if the libertarian / revolutionary socialist is kept alive long enough by the productions of the natural conservative, he will come up with twenty three new designs for the tool. Twenty two of them will be useless, but one might be better than the old model. After it has been tried out for a while in practice, the natural conservative will now be willing to use it. And thus we (a) survive and (b) make progress.

            Both personality types are useful in their place, and all the mixtures in between.

            But the reason that libertarians can get a bit shouty and aggressive is that they are “tear it down, I’ve got a better idea” merchants, like the revolutionary socialists. They’re useful – but in small doses.

  4. Why can’t the government say it made a mistake issuing the passport? They release prisoners who are wrongfully convicted, and some of those case are quite old. I think it’s reasonable for the government to say the the controversy prompted them to look at the case more closely, and that upon consideration they have determined the passport was issued in error, and the person is not a citizen. I think that’s probably what happened here.

    1. When the government errs to the detriment of the individual then it makes amends, when the government errs to the benefit of the individual it has to abide by its mistake

      Its the same reason they can release a wrongfully convicted person, as you note, but cannot imprison a wrongfully acquitted person

      1. “When the government errs to the detriment of the individual then it makes amends, when the government errs to the benefit of the individual it has to abide by its mistake”

        Says who? That’s not encoded into our constitution or laws anywhere as far as I know. For example, if the IRS makes a mistake in your favor, you can bet they will correct it. They might even penalize you!

        Issuing a passport in error to a non-citizen does not make them a citizen. Issuing a birth certificate in error, for example, regarding location of the birth, does not make the error now a matter of fact.

        There is plenty of precedence for correcting administrative errors by the government.

        “A passport may be revoked where the person obtained their passport fraudulently, the passport was issued in error, the person’s certificate of naturalization was cancelled by a federal court, or the person would not be entitled to a new passport under 22 C.F.R. 51.70 (a) or (b). Please note that the physical revocation of a passport is often difficult.”

        From the Department of State: https://tinyurl.com/y2zqrkt7

        (Protection from double-jeopardy is specifically provided for in the constitution. That is different.)

        1. While there is some argument that the government should have the right to correct administrative errors, there are a couple of fairness concerns.

          First, did people rely (and was that reliance reasonable) on the government’s mistake. Had they known of that the answer was the other way, would they have taken different action? In this particular case, it appears the answer is clearly yes since the family did take other actions for the other siblings. If the passage of time now precludes you from taking corrective action after the government’s mistake, then there is a moral obligation for the government to make it right.

          Second, the same principle that leads to statutes of limitations. The government may have made a mistake but how many decades have to go by before everyone just says “deal with it.” So back to your IRS example, yes they will attempt to collect a mistake made in your favor – as long as it’s discovered and pursued within the allowable time limits. They’d have basically no chance to chase you down with claims of a mistake in your tax calculations forty years ago.

          1. You make some interesting points, thank you. But they are abstract. Let’s address this particular situation.

            A woman born to a diplomat in the US is issued a passport. She’s in her 20’s. While here in the US she calls for the killing of US citizens. She leaves the country, joins an army that is engaged in hostilities with the US, and publicly burns her passport. This is a clear demonstration to renounce one’s citizenship, as well as actions that result in denaturalization.

            Now, she wants a new passport, and to return to the US.

            I don’t think so.

            1. That’s why I say that the only question here is on what basis she loses. This is like the worst test case imaginable for testing whether she has any reliance interests at stake.

              1. Oddly, you’re stumbling toward the correct path in that the main question may be how the decision is made. I think due process through a formal structure of verifiable fact-finding and decision-making guided by a qualified neutral authority might be just the ticket.

                Fortuitously, we do have this thing called the judicial system, though Pompeo and Trump seem not to be familiar with that concept.

            2. ” This is a clear demonstration to renounce one’s citizenship, as well as actions that result in denaturalization.”

              The federal government is a maze of bureaucracy. Unsurprisingly, there is a procedure to follow to renounce U.S. citizenship. Burning your passport can (and should) cause you problems at the border when you try to return. It is not, however, effective at renouncing citizenship.

              “While here in the US she calls for the killing of US citizens.”

              Hello, First Amendment. How long have YOU been standing there?

              1. There are seven ways to become denaturalized; renouncing one’s citizenship is only one of them. What she has done is another.

                1. “There are seven ways to become denaturalized; renouncing one’s citizenship is only one of them. What she has done is another.”

                  What has this to do with what I said, in response to someone who said and was quoted, as saying that it was a renunciation? Should we both get together and laugh at that person, whoever it was, for stupidly asserting that it was a renunciation?

                2. No, actually, there are not. The statute you are referring to was effectively struck down in the ’60s. The court chose to “save” it by treating all seven grounds as merely creating rebuttable presumptions of renunciation. Renunciation itself is the only way to lose citizenship, but if you do one of the seven “expatriating acts” the government can assume you meant to renounce it and the onus is on you to prove you didn’t.

            3. And if she had actually renounced her US citizenship we wouldn’t be having this discussion.

              But she didn’t renounce her citizenship, she burned her passport. A big gesture obviously, but a symbolic and not an official one.

              No one is saying to hold her a welcome home party. She did a terrible thing and she has to deal with the consequences. But everyone agreed she was a US citizen until it became inconvenient, and if she wasn’t a birthright citizen she would have become a naturalized citizen.

              In short: She’s your problem. Now deal with it.

        2. “Says who? That’s not encoded into our constitution or laws anywhere as far as I know”

          You might want to review the Constitution, to see what it says about Double Jeopardy.

          1. Revoking a mistakenly issued passport is not a matter of double jeopardy.

            One might consider that whoever applied for the passport in the first place may have lied on the application. While her father ceased to be a diplomat a month before her birth, he was still officially a diplomat according to the Dept. of State.

            1. “Revoking a mistakenly issued passport is not a matter of double jeopardy.”

              Nor was it alleged to be. Stay on topic.

              The claim was that “When the government errs to the detriment of the individual then it makes amends, when the government errs to the benefit of the individual it has to abide by its mistake” isn’t in the Constitution, in any form.

              Which is flatly and obviously incorrect, because of the prohibition of double jeopardy.

              1. You are an idiot, or a partisan, or both. YOU are the one who suggested double jeopardy. Then you shy “nor was it alleged to be,” and then you say “because of the prohibition of double jeopardy.”

                What are you talking about?

                Double jeopardy has nothing to do with someone not charged with a crime. This is an administrative matter.

                1. You are an idiot, or a partisan, or both.

                  That is not my diagnosis. I think he’s just an argumentative young fellow, who enjoys scoring pedantry points, even, perhaps especially, when they’re irrelevant to the topic at issue. He’s an average player, sometimes he scores, sometimes he misses. I recognise this type because I used to behave similarly, roughly a thousand years ago, before I recognised that everybody but me found this petty point scoring tiresome.

                  In this case he has scored a pointless point.

                  1. continuing….

                    Kevin Smith said : “when the government errs to the benefit of the individual it has to abide by its mistake”

                    You said : “Says who? That’s not encoded into our constitution or laws anywhere as far as I know.”

                    And you offered taxes as an ilustration of how the government was allowed to correct errors it had made in your favor. But your “mistake” was to deny that the Constitution contained a general rule about the government beng restricted from correcting errors it had made in the citizen’s favor, using words that could be interpreted as a denial that the Constitution contained any particular restrictions on the government correcting particular types of mistake.

                    On this young James pounced. For there is in fact one bit in the Constitution which does restrict the government from correcting one particular type of mistake, and he pointed it out. Even though it has nothing to do with any other kind of government mistake, including the point actually at issue – issuing a passport in error.

                    1. How attached are you to this theory that I’m “young”? Does that mean “not old enough to get into the old-folks’ home you’re typing from”?

                    2. How attached are you to this theory that I’m “young”?

                      Loosely. I’m quite attached to the theory that you’re a bit immature. In charity, I assume this is a youthful characteristic that you may grow out of. But of course not everybody does.

                2. “You are an idiot, or a partisan, or both.”

                  You are projecting.

    2. “Why can’t the government say it made a mistake issuing the passport?”

      A) right when it’s convenient for them to say so?

      B) saying they made a mistake, and actually having made a mistake, are not necessarily correlated.

      The right answer is to let her back in, then charge her with crimes they can prove in a court of law.

      1. Your argument is illogical Captain.

        “saying they made a mistake, and actually having made a mistake, are not necessarily correlated” is a small exaggeration. They’re clearly correlated – people, including the government, are much more likely to admit to a mistake when the’ve actually made one, than when they haven’t. But the corrlation is statistical, not a one to one mapping. But I’ll grant you the general idea. But for exactly the same reason, the fact that it may be convenient for the government to admit to this “mistake” doesn’t map one to one, to it being a fake mistake.

        But that is mere obiter. Your fundamental error is in concluding that a dispute over citizenship should be resolved by trying the alleged citizen for crimes unrelated to the question of citizenship. A verdict on the crimes would prove nothing. The way to resolve legal questions about her citizenship is to have a court case in which she contests the removal of her passport, on the basis that she is a citizen, and the government defends it on the basis that she is not.

        1. “”saying they made a mistake, and actually having made a mistake, are not necessarily correlated” is a small exaggeration. They’re clearly correlated – people, including the government, are much more likely to admit to a mistake when the’ve actually made one, than when they haven’t”

          You can do either one without doing the other.

          ” A verdict on the crimes would prove nothing.”

          Yet it’s how we decide who gets punished by the government.

          “The way to resolve legal questions about her citizenship is to have a court case in which she contests the removal of her passport”

          Yet the Trump administration is currently denying her access to the courthouse to do this. Almost like they’re afraid of the result if they do.

          1. A verdict on crimes is indeed how we decide who gets punished for crimes. But it doesn’t resolve who is and who is not a citizen, which is what the opening post is about.

            She doesn’t have to be in court herself, to pursue her case. She can do that remotely – and is doing so with the assistance of her father. And if the Trump administration allowed her into the country to pursue her case in person, they would, by so doing, cede her all sorts of legal rights even if they won the case, to which she would not be entitled if she did not succeed in gaining entry.

            So her citizenship case can be pursued perfectly well, and is being pursued, while she is outside the US.

            1. “She doesn’t have to be in court herself, to pursue her case”

              Srsly? Holding trials where only side is present seems like “due process” to you?

              1. IANAL, and I assume you’re not either. However….

                I believe the government can’t proceed with a criminal trial without the defendant turning up at some point. (This was the game that Mueller messed up with his indictment of Russkies in Russia. Since they were never going to turn up for trial, Mueller and pals could allege anything they liked and be confident that they’d never actually have to produce any evidence. But Mueller got overexcited and indicted a couple of corporations, which can’t actually show up in court because they’re corporations, so the rule about showing up in person doesn’t apply to them. Hence the scramble to avoid producing evidence and complying with discovery when the corporation’s lawyers turned up and said, OK let’s go with the trial.)

                That rule would apply if the young lady was charged with some criminal offense.

                But the rule doesn’t apply to civil actions. Her father can bring the case on her behalf. And that’s what he’s doing. The only people who need to turn up in court are the hired help. So there’s no trial where only one side is present. There’s a court case where both sides are represented by their lawyers.

                I’m stupendously confident that Mike Pompeo will be a no show in court.

                1. “But the rule doesn’t apply to civil actions.”

                  You sure needed a lot of words to say “yeah, I’m OK with holding trials where only one of the parties is allowed to participate”.

                  1. By “participate” you mean “show up in person” to watch her lawyers conduct the (civil) case. Yeah, I’m quite happy with that.

                    The government does not let you out of jail, so you can watch your lawyers at work in your civil action against your fire insurance company. Nor can you prevent someone suing you for damages in Illinois by remaining in South Africa and declining to come to the US. Nor, even if you are wlling to come to the US from South Africa, to watch your lawyers at work in Illinois defending you against the suit, does the government suspend its immigration rules to let you in, just because you want to watch your lawyers at work.

                    1. “By “participate” you mean…”

                      By “participate” I mean “participate”.

                      “Nor can you prevent someone suing you for damages in Illinois by remaining in South Africa and declining to come to the US.”

                      I suggest looking up the case “Pennoyer v. Neff”.

  5. IIUC it’s not settled to what extent that equitable estoppel applies against the feds, but lower courts have held that there must be some affirmative misconduct.

    1. That said, based on the evidence it sure sounds like she was born a citizen, despite what the Obama administration determined in 2016.

      1. According to Paragraph 25 of the complaint, this is the reasoning given by the Obama administration for revoking her passport (Alabama.com has a copy of the complaint, but not the exhibits).

        “On January 15, 2016, the United States issued a letter addressed to Ms. Muthana at her parents’ residence, purporting to revoke her passport under 22 C.F.R. 51.7 and 51.66. Exhibit D. In the revocation letter, the government again acknowledged that her father’s diplomatic position ended on September 1, 1994, but now asserted for the first time that because the U.S. Permanent Mission to the United Nations, Host Country Affairs Section, had not been officially notified of his termination until February 6, 1995, she was not “within the jurisdiction of the United States” at the time of her birth, and therefore not a United States citizen pursuant to the Fourteenth Amendment to the Constitution.”

        That reasoning seems pretty damn weak to me (granted, it’s from the complaint so it’s not like the letter is being presented in its best light). And her mom was granted permanent residency in July of 1994, about three months prior to giving birth to Hoda, which would seem to open up another door.

        1. As you say, you’re being presented with one side of the story. I followed the link you provided below to the Shaub piece. Mysteriously, it doesn’t analyse this question of the key date (ie the date the UN diplomatic position ended vs. the date the US was officially notified of that ending.) So one is left with the impression that the government’s reasoning is, as you say, pretty damn weak. But when you actually go to the relevant regulation, here is what you find :

          Definition of foreign diplomatic officer. Foreign diplomatic officer means a person listed in the State Department Diplomatic List, also known as the Blue List. It includes ambassadors, ministers, charg?s d’affaires, counselors, secretaries and attach?s of embassies and legations as well as members of the Delegation of the Commission of the European Communities. The term also includes individuals with comparable diplomatic status and immunities who are accredited to the United Nations or to the Organization of American States, and other individuals who are also accorded comparable diplomatic status.

          1. Which implies that what matters is what is recorded in the State Department Diplomatic List – ie the US government’s official record. Not the UN’s payroll. The words “the term also includes” implies that, possibly, UN diplomats are not in the “Blue List” but in some other list, so there may be some ambiguity about that. It seems unlikely that any change is made to the State Department Diplomatc List, or similar, until the US has been officially notified. No doubt it will all come out in the litigation, but it looks much more likely that diplomatic status is defined in terms of US records, not the “facts on the ground.”

            I might add that strictly, the question of who is within the jurisdiction of the United States for the purposes of 14A is a question of Constitutional interpretation, not definitively resolved by the regulations, but it’s difficult to see a court (except the 9th of course) deciding that the regs don’t answer the question in this case.)

            1. Interesting. But I have a hard time believing that, if the US had arrested his father in December 2014, they would have granted him diplomatic immunity because they hadn’t recorded his termination yet.

              And apparently there’s some evidence that the US was notified of his termination prior to Hoda’s birth (again, no idea how good it is). Couple that with her mom’s seemingly unquestioned status as a legal resident at the time of Hoda’s birth, and you have all the makings of a really nasty law school question for a final exam.

            2. No, I don’t think that is quite correct. It is a bit of a journey though.

              If we agree that “within the jurisdiction” is what needs to be determined, and that here it turns on the timing of the beginning and end of diplomatic status, then the US-UN agreement (authorized by Public Law 80-357) says immunities for UN reps follow the same rules as for other diplomats accredited to the host country. For them, 22 USC ?254d recognizes that the terms of the Vienna Convention on Diplomatic Relations (1961) are in effect (see e.g. US v. Al-Hamdi).

              1. That convention provides

                Article 42
                The function of a diplomatic agent comes to an end, inter alia:
                (a) On notification by the sending State to the receiving State that the function of the diplomaticagent has come to an end;

                If however the date of interest is when diplomatic immunity ceases, it being more closely tied to “jurisdiction” in 14A, then that is possibly later but certainly no earlier:

                Article 39
                2.When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

                In either case, the date that the Diplomatic List gets updated doesn’t enter into the picture.

                1. In either case, the date that the Diplomatic List gets updated doesn’t enter into the picture.

                  I expect that’s right. But I also expect that the Diplomatic List is what counts. Thus – I speculate – Mr Watanabe is appointed by the Government of Japan on 21 Feb 2019, and this is notified to the Government of the United States on 24 Feb 2019, and entered in the Diplomatic List on 3 March 2019, in the form “Mr Watanabe – Ambassador for Japan – from 24 Feb 2019”
                  Then the Government of Japan fires him 30 April 2022, notifies the US government 5 May 2022, and it gets entered in the List 17 May 2022. What matter is the dates he’s recorded as being an accredited diplomat 24 Feb 2019 to 5 May 2022, note the dates on which these entries are actually written down in the List.

                  1. No need to speculate, State provides a copy from last fall here. There is an overall date of compilation, but no individual dates of tenure are recorded.
                    Even if there were, as useful as I’m sure the list is if there were a discrepancy between a date it listed and the actual date of notice the law seems clear that the actual date would govern.

            3. “Which implies that what matters is what is recorded in the State Department Diplomatic List – ie the US government’s official record.”

              I have a hunch that the argument the government makes when it wants to prosecute someone who is no longer a diplomat but is not yet reflected as such in the paperwork goes the other way.

        2. Note how dishonest Prof. Manta is: she doesn’t mention that it was the Obama administration that revoked the passsport. It’s all Trump-Trump-Trump. I understand that dishonesty of that nature is very helpful in academic advancement, but that doesn’t make it other than contemptible.

          1. “Note how dishonest Prof. Manta is: she doesn’t mention that it was the Obama administration that revoked the passsport.”

            It’s not dishonest. It’s immaterial. Obama is not President. Who is?

            “It’s all Trump-Trump-Trump.”

            OK then. He wanted the job, and he decided to half-ass his way through it. Getting criticizing for half-assing the Presidency is a not-unexpected consequence of his decisions.

  6. Obviously, birthright citizenship doesn’t apply to offspring of diplomats. There’s no debate there.

    Furthermore, logic and the legislative history of the 14th amendment suggest that birthright citizenship also does not apply to tourists, transients, and anyone who owes allegiance to a foreign power or is not a lawful permanent resident domiciled in the US. This is supported by comments by Trumbull and Howard, and to conclude otherwise requires a tortured reading of the record.

    This is true notwithstanding the fact that beginning in the 1960s, the U.S. government began a practice of treating such persons as automatic citizens. And no Supreme Court case has held otherwise, including US v Wong which repeatedly emphasized that its holding applied to lawful permanent residents who were “domiciled” in the US.

    This issue was discussed extensively in this thread.

    The drafters of the 14A clearly thought that the citizenship clause was “simply declaratory” of current law — which was the 1866 Civil Rights Act: “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.” A child born in the United States to foreign national parents was, through their parents, “subject to a foreign power” and not eligible for U.S. citizenship under the Act. . .

    1/2

    1. 2/2 . . . . That’s why Sen. Howard commented that the children of “foreigners” and “aliens” would not be included, and he thought this to be obvious. Of course, the point of this was to ensure citizenship for freed slaves.

      It appears that the U.S. first “began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s.” This has simply been a custom and practice, rather than a Constitutional rule. Prior to that, the Indian Citizenship Act of 1924 would not have been otherwise necessary.

      The US had open borders at the time of the 14A, and under this policy the US consented to those who permanently settled or “domiciled” within the U.S, thereby submitting to its jurisdiction and becoming “subject to” the “full political” jurisdiction that the drafters of the 14A unambiguously intended to reference. This reflects the repudiation of jus soli “birthright subjectship” of feudal descent and British common law, seen most prominently in the Declaration of Independence, in favor of “citizenship” (a word not familiar to British common law) based on bilateral consent.

      1. 2/2 . . . . That’s why Sen. Howard commented that the children of “foreigners” and “aliens” would not be included, and he thought this to be obvious. .

        Jesus, not that lie again. Howard did not say any such thing.

        Of course, the point of this was to ensure citizenship for freed slaves.

        No. If that were the point, they could have said “Freed slaves are citizens.” They deliberately chose to say something much broader. (Moreover, note that Dred Scott held that no blacks — freed slaves or otherwise — were citizens.)

        1. It was the main point, but you’re correct, it is and was intended to be broader than that.

          “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

          This does not purport to be an exact transcript. Regardless, the context of the rest of the record shows that the most reasonable read of this quote — that the words “foreigners, aliens” were not superfluous — is the correct one. There are probably more than a dozen items one could point to in this particular piece of legislative history alone demonstrating this. As one example, Howard himself later explained that “foreigners” in his mind included Indians: “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our jurisprudence, as being quasi foreign nations.”

          1. Trumbull agreed that it meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

            As did Johnson, “Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power?for that, no doubt, is the meaning of the committee who have brought the matter before us?shall be considered as citizens of the United States.”

            As did Bingham, “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

            This is just the tip of the iceberg.

            1. These quotes do not help you. Again: people born in the U.S. of foreign parents (other than diplomats and occupying armies) are subject to the jurisdiction of the U.S. (Indians were sui generis; at the time they were not fully subject to U.S. jurisdiction. But foreigners present in the U.S. were. And are.)

              The actual Trumbull quote is “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.”

              That’s Indians. It’s not foreigners present in the U.S.

              1. “people born in the U.S. of foreign parents (other than diplomats and occupying armies) are subject to the jurisdiction of the U.S.”

                That’s true in some cases and not true in others. As these quotes conclusively demonstrate, foreigners and aliens who owe allegiance to or are subject to the jurisdiction of a foreign sovereignty are NOT subject to the full and complete jurisdiction of the U.S.

                However, under Wong, those who have been “domiciled” in the U.S., i.e. lawful permanent residents, are subject to the full and complete jurisdiction of the U.S., and so have apparently disassociated themselves with their countries of origin.

                I would also surmise that “illegal immigrants” who have established permanent residence in the U.S. for some length of time may also be included, regardless of their illegal status. I do think the U.S. has encouraged illegal immigration and in some sense impliedly consented, or could be estopped as suggested in the OP.

                1. “That’s true in some cases and not true in others. As these quotes conclusively demonstrate, foreigners and aliens who owe allegiance to or are subject to the jurisdiction of a foreign sovereignty are NOT subject to the full and complete jurisdiction of the U.S”

                  You’re making odd usage of these words “conclusively” and “demonstrate”.

                  And how did you become a lawyer without learning how jurisdiction works?

    2. 2/2 . . . . That’s why Sen. Howard commented that the children of “foreigners” and “aliens” would not be included, and he thought this to be obvious. Of course, the point of this was to ensure citizenship for freed slaves.

      It appears that the U.S. first “began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s.” This has simply been a custom and practice, rather than a Constitutional rule. Prior to that, the Indian Citizenship Act of 1924 would not have been otherwise necessary.

      The US had open borders at the time of the 14A, and under this policy the US consented to those who permanently settled or “domiciled” within the U.S, thereby submitting to its jurisdiction and becoming “subject to” the “full political” jurisdiction that the drafters of the 14A unambiguously intended to reference. This reflects the repudiation of jus soli “birthright subjectship” of feudal descent and British common law, seen most prominently in the Declaration of Independence, in favor of “citizenship” (a word not familiar to British common law) based on bilateral consent.

      1. The Supreme Court determines the meaning of the Constitution. Not some random anonymous blog commenter.

        1. Was that supposed to be a reply to someone else? Seems you made a mistake.

          1. It was to you.

            There are controlling cases on birthright citizenship, Wong Kim Ark and Plyer. The lawyers and scholars who are actual experts on Supreme Court practice are very clear that they establish birthright citizenship except for children of ambassadors and the like, and this is the view reflected in every serious immigration or constitutional law treatise. Those of us who do this for a living count perhaps one vote on the Supreme Court for overturning this holding.

            I realize there is a cottage industry on the right in stringing together impressive looking citations to make it look like this is an open issue, but it isn’t. It’s closed. People who claim it is open are cranks who don’t understand constitutional law and have too much time on their hands.

            1. Ad hominem and barely a whiff of a substantive argument. Nice. Strangely enough, in all my commenting on this blog, nothing has drawn more angry substance-free denunciations than this particular issue.

              If you want to read the tea leaves and claim SCOTUS would vote this way or that, cool, good for you.

              But they wouldn’t need to overturn Wong at all, for example, to hold that birthright citizenship doesn’t apply to tourists and transients, since that decision applied to a lawful permanent resident who the court repeatedly emphasized was “domiciled” in the U.S. The fact that you won’t admit this suggests you’re the crank who doesn’t understand constitutional law. Or maybe just a shrill propagandist. Is that what you do “for a living” ?

              1. “But they wouldn’t need to overturn Wong at all, for example, to hold that birthright citizenship doesn’t apply to tourists and transients”

                If you don’t mind ignoring the plain text meaning of the 14th, you can get rid of birthright citizenship entirely. They wrote it, on purpose, to apply to children of people who themselves were not born citizens, or naturalized. So whining now that it applies to people who were born to people who were not born citizens, or naturalized, is not unlike a 5-year-old crying because he couldn’t have ice-cream for breakfast. Sometimes the rules are not what you wish they were. Get over it.

                1. James Pollock “If you don’t mind ignoring the plain text meaning of the 14th, you can get rid of birthright citizenship entirely. ”

                  The plain text is that birthright citizenship applies to those “subject to the jurisdiction” of the U.S., and the drafters went into some detail explaining what the original public meaning of this phrase was. So the issue is who does it apply to. Here’s a few points that might help you understand:

                  1. Nobody argues that birthright citizenship applies to everyone born on US soil. The jurisdiction clause limits its application.

                  2. Nobody argues that we can “get rid of birthright citizenship,” the issue is the interpretation of the jurisdiction clause.

                  3. There does seem to be a lot of whining over this issue, but mostly it’s from those who refuse to examine the original meaning the jurisdiction clause or analyze the relevant case law.

                  1. “There does seem to be a lot of whining over this issue, but mostly it’s from those who refuse to examine the original meaning the jurisdiction clause or analyze the relevant case law.”

                    Harsh words. Take them to heart. All I’ll add is “quit acting like a three-year-old who didn’t get what he wanted”. Also, save the condescension… it’s badly misplaced.

              2. Nah, your nativist cherry-picking is more tilting at windmils than any kind of actual legal analysis. Full of ‘clearly’ and ‘it appears’ it is less analysis and more argument. But not legal argument, more like sophistry. And what the F is quote-ridden last paragraph? under this policy the US consented to those who permanently settled or “domiciled” within the U.S, thereby submitting to its jurisdiction and becoming “subject to” the “full political” jurisdiction that the drafters of the 14A unambiguously intended to reference? Reads like a high schooler’s vision of what a lawyer sounds like.

                I’ve seen you write way better before. But, of course, for those you were citing and anlalyzing legal precedent, not doing…whatever this is.

                You’re going to have to explain away pre-Civil War precedents whose language the 14th echoes if you’re going to even seem to know what you’re talking about.

                1. Sarcastro,

                  I shouldn’t respond with anything but vitriol to someone that smears me as a “nativist” which is tantamount to an accusation of racism. What you’re doing is Jussie Smollett on a smaller scale. This M.O. of yours is like so many on the left, and it is harmful and it is racist in itself.

                  Nonetheless. My writing there was really aimed at a reader familiar with the issue. If you read the record of the 39th Congress and the applicable case law, you will know the references.

                  What you need to understand is that some people are genuinely interested in exploring and understanding the issue, leaving open the possibility that they can be swayed by new information and arguments.

                  Personally, when this topic became of interest, I began with the position stated by Ilya Somin (who otherwise never met a pro-open borders legal argument that he didn’t embrace as gospel truth) that there are reasonable arguments on both sides. Since then I’ve learned quite a bit more, but I still think there are reasonable arguments on both sides as to the various cases that could be at issue.

                  With all of that said, “domiciled” is a reference to the holding of US v Wong. “Full political jurisdiction” refers to the original public meaning of the citizenship clause, including as it was explained by the drafters. According to those drafters, it excluded “foreigners” and “aliens” who owed allegiance to another nation.

                  1. You want to build a wall on accounta illegals being such a scourge
                    You might consider stopping immigration for a bit
                    You don’t like birthright citizenship
                    You link to websites that have articles like ‘Am I a White Supremacist?’

                    While each alone is just bad policy, there are a number of terms for the philosophy all these share in common, none of them very flattering.

                    Your melodramatic analogy of a lawbreaking hoax to my being unimpressed by your anti-14th posts, and calling it a nativist argument makes not sense, other than that you don’t like it when people call arguments for bigoted policies what they are.

                    Calling me racist is also confusing, since I didn’t bring your race up at all. I’d be just as contemptuous of your sophistry if you were black.

                    And I’m not the only one who finds your citations to be lacking to the point of being deceitful.

                    ‘I’m just asking questions’ is not going to shield you – you’re advocating for something, and don’t pretend otherwise. Whatever your path has been, this is where you’ve ended up, badly advocating to contract the franchise. Your ends are bad, and as my previous post pointed out your means are notably shoddy for you.

                    1. Your use of “nativist” was not employed to illuminate or bring value to a discussion, but to smear and demean.

                      Here, you reiterate that, stepping it up a notch with the baseless “white supremacist” smear, and labeling policies you disagree with as bad and evil. (Policies like prioritizing American jobs and lifting Americans regardless of race out of poverty over benefiting illegal immigrants). All the while, you continue to display complete ignorance of the constitutional issue supposedly being discussed, offering nothing of substance.

                      Hate hoaxes, racism hoaxes, baseless and dishonest political smears of racism against groups or individuals — all of these things are racist. It is literally racism-mongering, intentionally seeking to increase racism and the perception of racism to sow discord along racial lines for an ulterior purpose.

                    2. You have yet to refute that your arguments are nativist, even as I’ve provided my reasoning. I get that offends you, but if you’re not going to get beyond clutching your pearls and calling me the real racist, you will not convince many. Maybe not even yourself.

                      complete ignorance of the constitutional issue
                      Again, you’re an advocate, don’t pretend scholarship.

                      I’m not trying to sow discord by laying out why the things you advocate for all seem nativist, and some worse than that.

                    3. Do you think that U.S. policy should prioritize the interests of U.S. citizens, generally speaking, over citizens of other nations around the world?

                    4. I think that’s not a useful question to ask, and that that kind of reductive zero-sum nationalism is exactly why you are what you are.

                    5. Haha, your refusal to answer the simplest of questions is noted.

                      Anyway, that’s the most plausible way to define “nationalism.” And under that definition, I am a staunch nationalist. And this isn’t just about my own country. That’s a misunderstanding of “America first.” Every human being around the world deserves a government that prioritizes their interests and puts them first — a government that looks out for its people in the legitimate exercise of its proper functions. This is actually about making the world a better place as a whole.

                      I am not a “nativist,” because that would be defined as prioritizing the interest of the natural born, native citizen over the immigrant citizen. I have never once espoused any policy to that effect.

                      Of course, you’re not interested in defining terms or meaningful discussion. You’re just interested in racism-mongering.

                    6. I love America, and think it’s exceptional. But just as one can look out for number 1 without being actively hostile to everyone else, one can love America and not want closed borders and to change birthright citizenship.

                      The flavor of utilitarian zero-sum anti-immigrant nationalism you’re espousing doesn’t work for individuals, and has historically been pretty toxic on a national level as well.

                      As for your protestations that actually you totally like immigrants so you’re just a nationalist, do I need to hunt up your posts on Prof. Somin’s pr-immigration posts? Or your interests in exploring a haiitus on all immigration?

                    7. I’m calling you out based on your past words.

                      demographics are a long term problem for Republicans. They’re also a long term problem for anyone who wants a functional cohesive society and culture, or who favors ordered liberty over full blown socialism, or who believes in popular and national sovereignty and consent of the governed, or who seeks to retain whatever vestiges of Constitutional legitimacy that may remain.

                      Keep in mind that non-citizens are permitted to vote illegally. This foreign interference in our elections is enabled and encouraged by the Democrats, and calls into question the legitimacy of Democrat wins.

                      I guess there’s no reason the Norway flag can’t be every bit as “offensive” as the confederate flag, since it’s all about the hysterical objector’s feelings now.

                      Recently, there is your seeming approval of https://en.wikipedia.org/wiki/Lawrence_Auster

                      Oh, I also found a previous thread of you being taken to town on this ‘original intent of natural born citizen’ cause of yours previously. Oof.

                    8. Wow, hunting down old posts. I must have touched a nerve.

                      1. Do not post supposed excerpts without also posting the link, so we can verify and see the context.

                      2. “demographics are a long term problem for Republicans.” Would you like me to show you hundreds of mainstream op-eds stating this same fact? Would you like me to show you dozens of op-eds by leftists, socialists & gun grabbers rejoicing over the supposition that their agendas are inevitable due to demographic changes engineered through immigration? Do you think assimilation is important?

                      2. “it’s all about the hysterical objector’s feelings now.” Post the link. Context was something about a heckler’s veto for outfits like the SPLC to have authority over the meaning of whatever symbols they choose to target for agitation. Would you like me to link you to hundreds of black Americans being proud of Confederate heritage and symbols? Meaning isn’t determined by a small self-appointed intellectual elite.

                      3. “Lawrence Auster” Yes I approved of one snippet of logical content that he wrote. That’s an endorsement of the particular content, not the person or whatever else they did or said.

                      4. “Oh, I also found a previous thread” Good job, you found the thread that I myself linked for background in my very first post in this thread! LOL

                    9. 1. You can google and cut and past, can’t you?

                      2. That’s less the issue than the ‘diversity is the enemy of ordered liberty’ argument you make.

                      3. White knighting the Confederate Flag is what it is, I don’t see how context helps you there – it’s your example, you chose it, own it or not.

                      4. You posted an anti-Islam quote, and then laughed at me when I asked why you were posting a white supremacist. Now, that alone is meaningless – we all make mistakes, and guilt by association is dumb. But it looks like you and he are more fellow travelers than that when you take into account all these other comments.

                      5. I mean, NToJ was just BRUTAL. You’d better hope this is advocacy and not analysis, for your sake.

                    10. “as one can look out for number 1 without being actively hostile to everyone else, one can love America and not want closed borders and to change birthright citizenship.”

                      Sure, of course. The original meaning of the 14A is a different question from what is the best policy. But from a policy perspective, there are some problem cases. It’s pretty hard to argue for the policy of giving citizenship to the offspring of tourists, which has resulted in “maternity hotels” full of tourists just coming here to give birth. Senator Harry Reid said that “no sane country” would adopt current birthright citizenship policy for such reasons.

                      I don’t want closed borders. I want a reasoned analysis of what levels of immigration are most beneficial to Americans. Current levels are at an all-time high.

                    11. Birth tourism is a vanishingly small issue. You tried that on the last thread on this issue I cited above…it did not go well for you.
                      That you continue to cite it shows how anecdotally driven, and thus emotional your advocacy stems.

                      You are not a scholar; what you argue for aligns with your policy preferences. Stop hiding behind an objectivity you do not have, and trying to be credentialist with people taking issue with your arguments.

                      I don’t want closed borders. I want a reasoned analysis of what levels of immigration are most beneficial to Americans.
                      Again, you’re not actually asking for this. From past posts, you’ve already done that analysis in your head.

                      Current levels are at an all-time high
                      Unless you normalize by population, or even look at the current number normalized by population. This is deceitful.

                    12. “Birth tourism is a vanishingly small issue.”

                      Not really, according to the Washington Post. But even if it was, it could always become a big issue, and the point still stands regardless.

                      “You tried that on the last thread on this issue I cited above…it did not go well for you.”

                      Actually it went just fine.

                      “You are not a scholar; what you argue for aligns with your policy preferences.”

                      Scholars do this as well. I’m not a scholar/academic by trade. Are you?

                      It’s true that I argue for what aligns with my policy preferences. But only when I think there’s a case to be made. Arguing the merits is the process of discovery and determining truth.

                      “Stop hiding behind an objectivity you do not have, and trying to be credentialist with people taking issue with your arguments.”

                      Where have I tried to be credentialist or claimed objectivity? The best I can do is a fair argument and attempt to understand opposing viewpoints.

                      “Again, you’re not actually asking for this.”

                      Wrong.

                      “Unless you normalize by population”

                      The percentage of foreign born population is very near, equal to or surpassing the all-time high, depending on whose data you accept as to the number of illegal immigrants and so on. But everyone agrees it’s very close to the previous high water mark.

                      Do you think assimilation is important?

                    13. “Do you think that U.S. policy should prioritize the interests of U.S. citizens, generally speaking, over citizens of other nations around the world?”

                      Depends. Context? These two aren’t even mutually exclusive.

                  2. “I shouldn’t respond with anything but vitriol to someone that smears me as a “nativist” which is tantamount to an accusation of racism.”

                    If you don’t like being called a racist, maybe start by stopping doing and saying racist things, and hanging out with racist people. Those two things go a long way to convincing people not to call you a racist They’re not perfect, of course, because people are not perfect, but these two tiny little things will get you most of the way there..

                    1. “If you don’t like being called a racist, maybe start by stopping doing and saying racist things, and hanging out with racist people. ”

                      I can’t stop doing what I never started. But thank you for continuing to prove my point.

                    2. Admitting you have a problem is the first step towards resolving it.

                      Good luck, whenever you get there.

      2. That’s why Sen. Howard commented that the children of “foreigners” and “aliens” would not be included, and he thought this to be obvious.

        He did not say that. Please stop. Re-read his quote:

        “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

        Do you see what you invented, which is not present in the actual quote? The words “children of.” He does not say that it does not include “children of foreigners.”

        Moreover, there is no “or.” It is not “foreigners, aliens, or [people] who belong to the families of ambassadors.” It is one thing, not three.

    3. A child born to people illegally in the country is a citizen if, and only if, the bed in which they are conceived has a yellow dust ruffle.

    4. “Obviously, birthright citizenship doesn’t apply to offspring of diplomats. There’s no debate there.”

      Obviously. But if the birth in question happens to be of an offspring of someone who used to be a diplomat, there’s apparently plenty of debate.

      1. She loses on this technicality, too. Do some research. The definition of diplomat isn’t whether his country still considers him a diplomat, it’s whether our country still considers him a diplomat.

        1. Since she only has one parent, I guess that settles THAT.

      2. “But if the birth in question happens to be of an offspring of someone who used to be a diplomat, there’s apparently plenty of debate.”

        That’s correct, there is debate.

        Unfortunately, almost none of that debate appears in this thread. Just a lot of ignorant jackassery.

        1. “almost none of that debate appears in this thread. Just a lot of ignorant jackassery.”

          I’m so sorry that we don’t rise to your level of condescending jackassery. I’d say I’ll try harder, but the truth is, fuck off.

  7. “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.”

    -The Slaughterhouse Cases

    “The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”

    – Elk v. Wilkins

    “[S]ubject to the jurisdiction meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

    – Thomas M. Cooley, The General Principles of Constitutional Law in America

    1. The birthright citizenship clause was intended to unambiguously make citizens of the black persons born here, despite their parents lack of citizenship. It was necessary because several of the states tried to exclude from citizenship the many black persons milling about the countryside after the Civil War. Because the parents of the former slaves were not citizens, they could not say “people born here are citizens if their parents were citizens prior to the birth”, the way a good many modern folks wish birthright citizenship worked.

      If enough people prefer that second definition, a process exists to enshrine that definition into the Constitution. Until that process takes place, the existing definition of birthright citizenship remains. Whining about it accomplishes nothing.

      1. Yes, the existing definition of birthright citizenship remains. Here’s the definition from Wikipedia:

        “Pursuant to the Fourteenth Amendment to the United States Constitution and the Immigration and Nationality Act (INA), U.S. citizenship is automatically granted to any person born within and subject to the jurisdiction of the United States.[2]”

        The question we are discussing here is what does it mean to be “subject to the jurisdiction of the United States.”

        1. “Here’s the definition from Wikipedia:”

          Srsly?

          1. Feel free to explain what you think is wrong.

            1. “Here’s the definition from Wikipedia:”

  8. I believe this is the right link for the Jonathan Shaub article (without the spaces).
    https:// http://www.lawfareblog.com/ hoda-muthana- and-shamima-begum- citizenship-and-expatriation -us-and-uk

  9. So what gives a diplomat the right to give birth to a US citizen? If he’s not a US citizen himself, then he cannot possibly have a child that’s born a US citizen. The father was a citizen of Yemin, not the US. She is not a US citizen. Simple

    1. Diplomats are not subject to US jurisdiction which is why they are expelled instead of prosecuted for any crimes they commit.

      The lady is not a US citizen.

      1. Diplomatic immunity is a courtesy, it is a choice by the US government and as such does not remove birthright citizenship.

        1. Are you seriously arguing that children born to foreign diplomats while they are in the United States on official business have birthright citizenship in the United States?

          1. Read better, jph.

            1. My reading is just fine. It’s your asinine comment that’s in question.

            2. Diplomatic immunity is a courtesy, it is a choice by the US government and as such does not remove birthright citizenship.

              The above implies that either she, or her father, has birthright citizenship. Or you wouldn’t have mentioned birthright citizenship. The problem isn’t with anyone’s reading.

              1. Most children born in the United States have TWO parents.

      2. Assuming he was a diplomat at the time of her birth, right?

  10. “On January 15, 2016”; Remind me, who was President back then?

    Sounds to me like Trump is just continuing the previous administration’s policy. Why doesn’t the previous administration come in for any hate here?

    1. Both admins can be wrong, but the one currently acting loudly and badly is the one people will look at.

      1. And sometimes both administrations can be wrong, but nobody cares until one of the administrations is Trump’s.

        I can see the legal argument on both sides here, and I suspect she’s screwed either way, because joining a hostile military is often treated as voluntary renunciation of citizenship.

        1. ” because joining a hostile military is often treated as voluntary renunciation of citizenship.”

          Which might be relevant if ISIS had a habit of allowing women to serve in their military forces. But (shockingly, I know) they’re a bit sexist.

      2. She didn’t even mention who made the determination. Its dishonest.

        And stupid, Did she think no one would notice?

        Another terrible post by a lousy addition to the Conspiracy.

        1. “She didn’t even mention who made the determination. Its dishonest.”

          Or would be, if who made the determination was significant, which it isn’t, unless you’re a hyperpartisan who decides if something is right or wrong based on whether it was done by “us” or “them”.

    2. “Why doesn’t the previous administration come in for any hate here?”

      The key word is “previous”. Obama isn’t President any more.

  11. Why isn’t she suing herself? Fundamental to her claim to be a citizen is her claim that this isn’t an immigration matter, and the entire law of immigration (including restrictions on when a person denied a visa can sue in their own name) simply doesn’t apply to her.

    Why isn’t she making that point by suing in her own name? The government is denying her, a citizen of the United States, her constitutional right to travel. Why not simply assert that, and let the government raise any claim it may have that she isn’t a citizen as a defense?

    If her father is suing for a declaration she is a citizen, she’s already conceded most of her case. Even to concede it’s a question is to concede the case’s essence. Her position ought to be that she is a citizen simplicitur, that begins and ends the matter, and in pretending otherwise the government’s entire conduct has been nothing but fraudulent, completely arbitrary and completely without right. Let the government explain itself in its defense.

    1. I’d assume it’s because she’s currently in a POW camp, and unable to engage in the mechanics of filing a lawsuit. Her father has sued as “next friend”, which Wikipedia says legally means, “In common law, a next friend (Legal English prochein ami) is a person who represents another person who is under disability or otherwise unable to maintain a suit on his or her own behalf and who does not have a legal guardian.”

      1. Excuse me, “refugee” camp, not POW camp. Well, that’s kind of unclear.

        But the reason he’s filing the lawsuit for her is explained in the filing.

    2. “Why isn’t she making that point by suing in her own name?”

      Difficulty in reaching the courthouse, perhaps? It’s tough to file papers with the clerk if you can’t get out of a completely different country.

  12. If the government is right, her father can’t represent her interests, as his interests and ties to another country require him to present the matter gingerly and respectfully, avoiding annoying the US government for diplomatic reason.

    To represent her interests, she needs a lawyer who can kick ass and raise hell, and if the government gets annoyed it can kiss his ass. That’s the way citizens of the United States deal with their government when it tries to pull stunts like this. Non-citizens petitioning for a favor behave diplomatically, as her father is doing. Citizens claiming the government is trying to take away what is theirs by right often need to behave differently. They need to show attitude. She is badly sick in need of chutzpah. And she needs a lawyer who can act the part.

    1. I understand if she does this the government might charge her with capital felonies and try to execute her as soon as she shows up. Perhaps her association with ISIS makes descretion the better course of valor in dealing with the US government in the long scheme of things. But it won’t help her win her birthright citizenship case.

  13. Fine. Charge her with treason and have her executed. And take her jihadi father with her.

    1. That probably is the right thing to do, but constitutionally requires two eye witnesses, which is sometimes hard to accomplish. Which is why, as I point out above, acts of treason are usually just treated as renunciation of citizenship.

      1. You can go to prison for life for providing material aid to a terrorist organization.

        1. You can go to prison for life for providing material aid to a terrorist organization.

          Sounds bad for those aiding the Saudis and Putin.

          1. Don’t worry Arty, they aren’t going to mess with folks like you who are already institutionalized.

      2. How about one eyewitness and the footage from the drone strike?

        1. We usually try to avoid drone-striking refugee camps, or at least, we did under previous administrations.

          1. Under the last administration, if we didn’t drone strike refugee camps, it was only by accident. Since we were launching drones at cell phones without knowing where they were. That’s how we wound up firing a Hellfire missile into a wedding reception, remember?

    2. Do they have two witnesses to the overt act? I don’t disagree that the allegations, if believed, constitute treason (a rarity among treason accusations), but there’s still the necessary threshold for proof.

  14. Even if there wasn’t a strong constitutional argument against birthright citizenship, think about how stupid the idea sounds. A foreign army invades your country and has children. Now you can’t expel enemy combatants and they have a right to be here? A hypothetical libertarian nation with open borders and birthright citizenship wouldn’t be libertarian for long. There is nothing wrong with using government force to exclude people who undermine your values.

    1. A foreign army invades your country and has children. Now you can’t expel enemy combatants and they have a right to be here?

      I haven’t see many people around here arguing that birthright citizenship protects the citizen’s parents from deportation….

      1. Path to citizenship through their citizen child. Also, you wouldn’t want to separate poor, innocent children from their parents.

        1. “Path to citizenship through their citizen child”

          Requires, at a minimum, that the illegal immigrant leave the country and stay out for at least ten years. Before applying.

          “you wouldn’t want to separate poor, innocent children from their parents.”

          That would be up to the parents. They can take their US citizen child with them, or leave them here when they go.

        2. Path to citizenship through their citizen child.

          The nativists were lying to you when they told you about this. A minor child cannot sponsor a parent.

          1. What about a child who has been through its minor phase and is now an adult ?

            1. what about them?

    2. Diplomats are a classic example of people not subject to the jurisdiction of the country they are in. Members of an invading or occupying army are another. They are definitely not subject to the jurisdiction of the country they are invading or occupying.

      1. “Members of an invading or occupying army are another.”

        So, children born to people in the US illegally should not be citizen’s then right?

        From Mirriam-Webster
        invade verb
        in??vade | \ in-?v?d
        \
        invaded; invading
        Definition of invade

        transitive verb
        1 : to enter for conquest or plunder
        2 : to encroach upon : infringe
        3a : to spread over or into as if invading : permeate doubts invade his mind
        b : to affect injuriously and progressively gangrene invades healthy tissue

        Is not entering the US illegally, consistent with both definition 2 (to encroach upon) and definition 3a (to spread over or into as if invading)?

        1. Definition 3a is invalid. You can’t use the word being defined in the definition of the word. The editors should have caught that.

      2. “Members of an invading or occupying army are another. They are definitely not subject to the jurisdiction of the country they are invading or occupying.”

        This isn’t even remotely true, or shooting one of them would be murder.

        1. It is even remotely true, which is why shooting them isn’t murder.

    3. ” A foreign army invades your country and has children.”

      Foreign armies that invade and occupy territory sufficiently well to bring their wives and girlfriends are outside the jurisdiction of the US. The last time the US was successfully invaded by a foreign army, this problem didn’t come up, because one of the invading troops turned himself and his invading compatriots in to the FBI. The war before that, the Atlantic was a sufficient barrier to invasion.

    4. Even if there wasn’t a strong constitutional argument against birthright citizenship

      Which there isn’t.

      A foreign army invades your country and has children. Now you can’t expel enemy combatants and they have a right to be here?

      No. The ways that this is wrong are legion. First, the 14th does not apply to the children of invading armies. Second, even if it did, they have no right to be here and you can expel them.

  15. We spend hundreds of millions on intelligence agencies and no one can slip a couple of hundred dollars to some desperate refugee to solve this problem for us. Sad.

    1. Atta boy Bob!

      No due process, no presumption of innocence, no counsel, no evidence presented at trial…

      Just straight to extra-judicial execution!

      Why are you on a law blog anyway?

      1. I only care about due process, presumption of innocence and other legal machinations for my people. She’s not.

        1. “I only care about due process, presumption of innocence and other legal machinations for my people. She’s not.”

          She’s an American. Therefore, by your statement, you aren’t. GTFO.

      2. Cry me a river. We kill people overseas all the time without due process, many with less evidence of guilt than this one.

        A missile from a drone or a knife in the dark does not make too much of a difference morally.

        1. Atta boy Bob!

          At least you’re consistent.

          Meanwhile, there are Americans (true blue and patriotic too who love AND HAVE SERVED our Country!) who want to stop killing people overseas all the time without due process, many with less evidence of guilt than this one.

          1. Do they want a lollypop for being good boys?

          2. apedad-

            And it’s a good thing Hillary “We came we saw he died” Clinton wasn’t elected, as we probably would have done more such killing over the last two years than we have.

            1. Yawn

        2. Holy fuck is this morally bankrupt. What a disgusting position, devoid of any consideration that “we are a nation of laws” and that those laws prevent us from executing people without due process.

          1. Now whose being naive Kay?

            1. You, mostly.

              The reason we’re better than them is that we have rule of law. Since you’re willing to toss that aside, you’re no better than they are.

            2. Are you basing your argument on the morality of Michael Corleone?

      3. No due process, no presumption of innocence, no counsel, no evidence presented at trial…

        Not sure what you’re getting at here, considering she’s publically admitted to wanting to join ISIS and succeeded in doing so. That alone is grounds to keep her from ever setting foot again on American soil, citizenship or not.

        1. ” That alone is grounds to keep her from ever setting foot again on American soil”

          You wanna be careful with this.
          They might get to “he posted a comment on a blog critical of the American government. That alone is grounds to keep him from ever setting foot on American soil” before you pass from natural causes at an appropriate age.

          I’ll stand on my original answer, which was, and still is, “let her back in, and then charge her with all the crimes they can prove in a court of law.”

    2. And I absolutely, completely agree that she should face any and all criminal charges that are applicable.

  16. Just for context, for color, I will quote Ms. Hoda Muthana from 2015 – which is not that long ago. But now she’s changed, she says. That is a lot of change to undergo in so short a period of time, considering this:

    “Americans wake up! Men and women altogether. You have much to do while you live under our greatest enemy, enough of your sleeping! Go on drive-bys and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriot, Memorial etc Day parades..go on drive by’s + spill all of their blood or rent a big truck n drive all over them. Kill them.”

    She posted this on March 19, 2015, from her now-defunct @ZumarulJannah account. Not quite four years ago. So, an adult lifetime of agitating against the United States from Alabama, moving to Syria in 2014, several marriages to ISIS fighters; but now, she’s somehow seen the light, come to her senses, and wants to come “home.”

    Or has she?

    She burned her U.S. passport.
    She joined a jihadist group that is trying to set up a caliphate in a sovereign country.
    She married multiple avowed jihadist fighters.
    She encouraged violence against United States citizens – unambiguously.

    Has she since repudiated these acts and her speech? I don’t think so. (I am unaware of her having done so; if you are, please let me know.)

    My assessment is that she is NOT a U.S. citizen, based on her father’s diplomatic status at her birth, and she is EXACTLY the kind of person we want to keep out of the U.S.

    1. That said, I love how the mainstream press reports on her as “an Alabama woman”.

    2. Meh. She’s insipid. Who cares?

    3. I can point to several commentors here who are the EXACT people we don’t want in the US. But that isn’t sufficient justification to send you back to England.

  17. By the way, let’s assume, for the sake of argument, that she was, indeed, a U.S. citizen.

    Joining a foreign military service that is engaged in hostilities with the U.S., e.g., ISIS, is ground for expatriation:

    ‘INA [8 U.S.C. 1481(a)(3)] , section 349(a)(3) provides for loss of U.S. nationality if a U.S national voluntarily and with the intention of relinquishing U.S. nationality enters or serves in the armed forces of a foreign state engaged in hostilities against the United States or serves in the armed forces of any foreign state as a commissioned or non-commissioned officer.’

    Paraphrased from the U.S Dept. of State website.

    Her act of burning her U.S. passport demonstrates her intention of relinquishing her U.S. nationality. And, she admits she went to Syria to join ISIS, and that she did.

    Case closed.

    1. Yes, she’s losing in any case, the only question is on what basis; Her dad’s diplomatic status at the time of her birth, or her own treason. (Not metaphorical, literal treason.)

    2. Agreed as long as we go through whatever official process there is which INCLUDES any appeals, etc.

      Govt by tweet is so millennial…

      1. Honestly, I don’t think due process applies to the State Department’s administrative decision to declare her a non-citizen, and for the DoJ to deny her entry.

        1. Seriously? So the State Dept can just willy-nilly declare citizens as non-citizens without any process, oversight, or constitutional constraints?

          1. While you seem to mock and argue from the extreme, I believe that it is the case, that it is an administrative determination oh the part of State, and the rebuttal and burden of proof are with the subject person, not State.

            There is a process, there is oversight, and a constitutional question would necessarily be brought by the subject person.

          2. You might want to do some research on this, as I have. Expatriation is often an administrative decision on the part of State. One of the notable cases on this topic is Vance v. Terazas.

            1. That’s not at all what Terazas says.

  18. This piece demonstrates the disingenuousness we have come to expect from Prof. Manta. Note how she pretends that a bureaucratic snafu relating to an unusual event (a home birth in the 1970s) in Kansas is evidence of Trump’s personal nefariousness. Most Conspiracy readers aren’t stupid enough to buy that kind of flimsy argument.

    More substantively, note that Prof. Manta’s piece is devoid of legal analysis. Estoppel against the sovereign, in its performance of sovereign functions, is actually a complex topic, but you won’t learn about it here. I hope Prof. Manta’s students get better analysis than Conspiracy readers, who on many days get nothing but doses of TDS from Profs. Manta and Somin.

    1. I’m curious if you went to law school.

      Maybe 10% of what you learn in law school is relevant to your career. The rest is this kind of fluff and filler.

      You are not expected to be able to pass the bar fresh out of law school, that’s why there are bar prep classes that will teach you how to pass the exam (the bar exam itself also has little relevance to the practice of law).

      You are not expected to be able to handle a case on your own fresh out of law school, that’s why law firms spend a tremendous amount of money and time educating new attorneys on the actual practice of law (the client spends the money, the law firm bills for the time).

      Law school is not unique.

      1. What does handling a case (which would involve knowing where the courthouse is and a hundred things they don’t teach in law school) have to with analyzing the applicability of estoppel to sovereign entities performing governmental functions (which is exactly the sort of analysis that might be required on a law school exam)? In fact, the fusion of practical knowledge (learned as a young associate) with theoretical (acquired, initially, in law school) is the essence of the practice of law. That is why in biglaw we (i) try to hire the people with the best grades from the best law schools and then (ii) give them lots of mundane work, so that they learn the nuts and bolts of how a big deal is closed or how a big case is litigated. I hope Prof. Manta’s students are learning to analyze issues, but I fear that they will graduate believing that concern for the oppressed and hatred of Trump are the elements of legal acumen, since that is all she ever displays.

      2. “You are not expected to be able to pass the bar fresh out of law school”

        Yes, you are. You can choose to hedge your bet by taking a bar prep class, as well, if you aren’t in debt enough by the time you earn your JD. Bar prep class is for people who didn’t take all the bar subjects while they were in law school.

  19. Her father was a diplomat so when she was born in the USA, she was not subject to US jurisdiction.

    She’s not a natural born citizen nor a US citizen.

    She’s a citizen of whatever country her father was a diplomat for and happened to be born in the USA.

    1. Except that he was no longer a diplomat when she was born – delays by the government in processing the paperwork don’t change that. And she has another parent, who was a permanent resident, and I would think was thus subject to the jurisdiction of the USA.

  20. “no right to enter the United States”

    If she joined ISIS from the U. S., shouldn’t she be entering the U. S. as a defendant?

    1. Doesn’t make a lot of sense to import defendants, does it?

      1. I would have thought that even a noncitizen is obliged to obey the Neutrality Act while they’re in the U. S., otherwise the U. S. would be a base for private wars against friendly countries and the feds couldn’t do anything about it.

      2. “Doesn’t make a lot of sense to import defendants, does it?”

        You know who agrees with you? Mr. Noriega, that El Chapo fellow, and pretty much all of their business associates.

    2. “If she joined ISIS from the U. S., shouldn’t she be entering the U. S. as a defendant?”

      It’s not obvious to me what crimes she committed. Maybe she did, but I haven’t looked closely enough. I don’t think screwing the enemy is illegal.

      1. “I don’t think screwing the enemy is illegal.”

        Material aid to terrorists is. Its not a high standard either, lots of things are covered, even seemingly minor things.

        Cooking and cleaning so the terrorists can kill?

        1. Including washing out those hard-to-remove bloodstains.

      2. “It’s not obvious to me what crimes she committed.”

        Treason.

        She joined a foreign army engaged in hostilities with the U.S.

        Article III of the Constitution:

        Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

        Chapter 18 of the United States Code prescribes the punishment for treason as defined in the Constitution:

        Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

        1. Yes, and it requires the testimony of 2 eyewitnesses, not just the comments of a bunch of anonymous people on the internet.

  21. The argument for equitable estoppel is interesting but see Miranda v. INS; 459 US 14 – Supreme Court 1982; at least normally equitable estoppel does not run against US government.
    There may be exceptions, though.

    1. Wow, this is more legal analysis in one sentence than Prof. Manta produced in a whole post.

  22. If she’s a citizen, she should be tried for treason and hanged.

    If she’s not a citizen, she isn’t our problem.

  23. And there is another example of the “tolerant” left in Oklahoma where a student is assaulted by a blm student for simply wearing a hat and flag. More evidence that blm is a terrorist organization that seeks to incite violence to forward its extremist agenda.

    1. High school student brawls. When you need to reach that deep for evidence of your narrative, maybe things aren’t going so well.

      1. Jussie says hi.

        The gay guy in Georgia who burned his own house down also says hi.

      2. Professor Stanger also says hi.

      3. so Sarcastrated using your logic we shouldn’t make a big deal of the high school student who is gay gets beat up, right? Or does it only work your dismissive way when it doesn’t fit into your version of the Narrative?

        1. I do not dismiss bullying or the problems of high school violence. But it is not proof of terrorism.

      4. Sarcastr0, you ignorant slut.

        According to your team’s narrative:

        Little boy kisses little girl in grade school – sexual harassment, rape!
        Little boy makes a “gun” with his fingers – call the police, weapons threat!

        But, someone gets beaten-up by some thug for wearing a MAGA hat and flag shirt – oh, just kids being kids.

        Fuck you.

        1. ThePublius, your ‘your side’s narrative’ are actually your side’s narratives, each based on a single anecdote and spun into the dogma of strawman liberals everywhere.

          I’m not excusing high school bullying, but proof of liberal terrorism it is not.

          1. That’s baloney. You can fill volumes with the reports of kids being harassed by so0called educators for innocent kisses and playing cops and robbers. There are many incidents in my town. alone – and it’s a relatively small town. Schools have become liberal-progressive indoctrination centers. Try sending your kid to school with a MAGA cap on, some time. Then try with an “Impeach 46” hat. Report back.

            Not single, isolated anecdotes, at all.

            Talk to me about the recent attack on a conservative activist at the University of California at Berkeley. Police have ID’d the perpetrator, won’t release the name, and haven’t arrested or charged him. MSM ignores this, except today, when the WaPo finally reports on it, with the “story” being how the right is enraged.

            Wake up and smell the covfefe.

            1. You can fill volumes with the reports of kids being harassed for all sorts of stuff.

              There are many incidents in my town. alone – and it’s a relatively small town
              Sounds like a problem with your town.

              Soaking in that much confirmation bias is giving you paranoia.

              1. “You can fill volumes with the reports of kids being harassed for all sorts of stuff.”

                You skipped over a step. Here it is:

                Kids being harassed isn’t terrorism. With very few exceptions, it doesn’t produce anyone terrorized.

                (I’ll leave open the question of whether a kid in America who wears a hat that says America isn’t great deserves/is asking for harassment in an American school.)

      5. And thus your stories have disproven all alleged political violence in America against liberals, while at the same time proving constant liberal terrorism against conservatives.

        The we-are-the-victim-but-also-have-all-the-guns -you-just-keep-pushing-liberals narrative is not a healthy one.

        1. And the liberal we – can’t – actually – find – real – victims – to – enforce – our – identity – politics – agenda – so – we – have – to – make – them – up – and – inflate – them – artificially – by – publishing – fake – news – about – the – odd – one – that – does – happen – all – while – just – calling – white – people – racist – because – we – got – nothing – else – going is a health narrative?

          1. You want an anecdote off? Because that’s a stupid game.

            Funny you keep insisting I’m calling all white people racist. What’s up with that?

            1. Sarcastrated – you think this is some sort of joke or game going on? We have literal domestic terrorists that have been empowered by hateful, racist, and bigoted actions from the Left including groups like blm. These ‘people’ think that assaulting someone for expressing a simple opinion is justified. You should be ashamed of yourself to be acting as their apologist.

              1. We have literal domestic terrorists that have been empowered by hateful, racist, and bigoted actions from the Left

                Yeah, I think this is a joke and your melodrama is pretty funny.

                1. I doubt you will find it so funny when “up against the wall” time comes for your ilk.

                  1. Following histrionics about assaults on speech with death threats is getting quite common around here.

                    1. Conservative, white, Christian folks are TOTALLY oppressed in America right now.

                    2. And so when the police tell you to put your hands up against the wall before arresting you they are issuing a death threat?

                    3. Hahahahaha!

  24. She wanted Islam, she got Islam. Fuck her.

    Anything else?

  25. As unsavory as Ms. Muthana is, she deserves the rights and protections of the law that all American citizens have.

    Sec. Pompeo is depriving her of citizenship at a time and place where she cannot easily challenge that position.

    Worse, as anybody who has ever sued the government knows, you need lots of time and money to challenge an adverse ruling – no matter how blatantly wrong that ruling is.

    Unfortunately, Sec. Pompeo knows what all longtime government employees know – they can take a wrong position and not suffer any consequences. The entire burden: financial, energy, and time, lie on the shoulders of the wronged party.

    1. Secretary Kerry made the decision.

      1. Secretary Pompeo decided to stick with it. The “but they do it too!” defense of wrongdoing is not actually a defense of wrongdoing.

    2. She’s not a citizen! The Dept. of State can make this determination. She made the decision herself, regardless of if you think she was a citizen by birth right (which I don’t agree with), when she joined an army that is engaged in hostilities with the US and burned her passport.

      Why is this so difficult for you to grasp?

      1. ThePublius

        Contrary to what you claim, we Americans do not have the right to unilaterally give up our American citizenship.

        To give up our citizenship, we have to fill out numerous forms, pay a processing fee (in the thousands of dollars), fill out a tax declaration (and pay capital gain/income taxes as if we had sold all of our assets at that time), have the IRS certify that we have paid all required taxes, and then have the state dept. give us a certificate affirming that we are no longer U.S. citizens.

        Skip any of those steps, and you are still considered a U.S. citizen and subject to all of its laws and requirements.

        So bluntly, your opinion doesn’t count for much when you opine that she is still a U.S. citizen. Suggest that you stay in your knowledge lane when you “opine”; you sound ignorant when you step out of that lane.

        1. Actually, it’s more like, “Skip any of those steps and the government isn’t obligated to stop considering you a US citizen.”

          1. Yes, it’s harder than that to get out of paying your income taxes.

    3. Reminder:

      “Americans wake up! Men and women altogether. You have much to do while you live under our greatest enemy, enough of your sleeping! Go on drive-bys and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriot, Memorial etc Day parades..go on drive by’s + spill all of their blood or rent a big truck n drive all over them. Kill them.” Hoda Muthana, 2014

      1. Someone can suck real bad and still be a citizen.

        1. Like, I don’t know if in the end she’s still a citizen, but hating America doesn’t make you not American.

          1. ” hating America doesn’t make you not American.”

            Hell, I heard of a guy who RAN FOR PRESIDENT on a platform that American wasn’t great. Put it on hats and everything.

      2. “‘Americans wake up! Men and women altogether. You have much to do while you live under our greatest enemy, enough of your sleeping! Go on drive-bys and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriot, Memorial etc Day parades..go on drive by’s + spill all of their blood or rent a big truck n drive all over them. Kill them.’ Hoda Muthana, 2014”

        Hello, Mr. First Amendment. How long have you been standing there?

        1. Imminent lawless action – definite future time, i.e., Veterans’ Day, Patriots’ Day, Memorial Day – Brandenburg v. Ohio – NOT protected speech.

  26. Today I learned that requiring someone to deal with the readily foreseeable consequences of their own decisions in a way that does not result in a third party literally losing their life = slavery.

  27. I don’t give a rat’s hind-quarters whether she was a citizen or not. I’m willing to take as given she was. I believe she renounced her citizenship by her actions and we are under no obligation to take her back.

  28. I don’t give a rat’s hind-quarters whether she was a citizen or not. I’m willing to take as given she was. I believe she renounced her citizenship by her actions and we are under no obligation to take her back.

    1. What is really the smarts is she thinks the taxpayer should cover the bill for her therapist!

    2. It’s weird how constitutional issues don’t get resolved based on what you believe.

  29. I would think that even if she had been without question a US citizen at birth, Muthana’s act of going to Syria and joining ISIS (at a time when ISIS, which claims to be a nation, was at war with the US) constitutes a renunciation of US citizenship. You don’t get to undo that unless the US feels like letting you.

    1. The argument is plausible – though per Supreme Court decisions and the current law, citizenship is not lost based on any act; intent is also required. But if that’s the argument, she’s entitled to a hearing; the government can’t just say, “So-and-so gave up his citizenship.”

      Otherwise they can say, “JDGalt went to Syria and joined ISIS, so he’s not a citizen anymore.”

  30. she left here to go there and help ISIS fight…. amongst other, the US.

    In other words, treason.

    Let her come back but let her know she WILL be charged with treason…. aiding or giving comfort to our enemies. ISIS have been, and continue to, fight against the United States as an enemy. By going there, marrying three different of them in sequence, she was giving comfort to an enemy.

    Treason.

    Try her for that. COngress have the power to determine the punichment. If they determine her leaving here to fight there to be a renouncement of her citizenship, let them.

  31. She made war on the US. Fuck her.

    Just rescind her passport (already done) and leave her there. Her status as a citizen matters not because without a passport she can’t enter the US anyway.

    1. ” Her status as a citizen matters not because without a passport she can’t enter the US anyway.”

      The wall isn’t finished yet.

  32. Why are you blaming the Trump administration? The State Department notified her family of that on January 16, 2016. That’s before Trump became president.

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