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Jim Ho on the Fourteenth Amendment and Children of Illegal (and Legal) Aliens

President Trump has recently said that he plans to issue an executive order denying citizenship to the children of illegal aliens. The Fourteenth Amendment, though, says,

All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

The relevant federal statute (8 U.S.C. § 1401) likewise says,

The following shall be nationals and citizens of the United States at birth ... a person born in the United States, and subject to the jurisdiction thereof.

An executive order can't supersede either the Constitution or a constitutionally valid federal statute, so the premise behind any such order must be that children of illegal aliens aren't covered by the Amendment and § 1401, presumably because they aren't "subject to the jurisdiction" of the United States. And indeed Senator Harry Reid, back in the early Clinton Administation, proposed a bill that would have taken that very view (though also purporting to rely on Congress's "power to enforce, by appropriate legislation, the provisions of" the Fourteenth Amendment):

In the exercise of its powers under section 5 of the Fourteenth ... Amendment ..., the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.

Now I personally think that categorical birthright citizenship is a bad idea; it would be better if children born in the U.S. to illegal aliens, or to legal alien tourists, didn't get U.S. citizenship as a result (though perhaps the answer might be different as to children of legal permanent residents, or to children who have lived here for long enough, or some such). U.S. citizenship is one of the most valuable things in the world, and we generally don't let people get hugely valuable things because of the criminal acts (even if only mildly criminal) of their parents, or for that matter because their parents were lawfully visiting the U.S. at a particular time. Whatever the basis for deciding who our future fellow citizens -- and thus the future rulers of the nation -- should be, the fact that the child was born on our territory shouldn't be enough.

This having been said, the Constitution seems pretty clear to me, even if I disagree with the rule it sets forth: Being the child of illegal aliens (as opposed to, say, the child of foreign diplomats) doesn't stop you from being "subject to the jurisdiction" of the U.S. Jurisdiction is an entity's power to impose its legal will on someone, and the U.S. unquestionably has the power to do that for children of illegal aliens as much as for children of legal aliens or of citizens. People who commit a crime, including the crime of illegal entry, don't somehow elude the jurisdiction of the U.S. as a result. Likewise, the children of people who commit this crime are subject to our jurisdiction as well.

That, of course, is just the short version -- I thought I'd also pass along a longer version, from Jim Ho, who was just appointed to the Fifth Circuit earlier this year. Jim is a very smart guy, as well as a pretty solid conservative; he clerked for Justice Clarence Thomas, and spent time as Chief Counsel to Senator John Cornyn, and was also Solicitor General of Texas (immediately following Ted Cruz). He has actually studied the subject closely; here is an excerpt from a Wall Street Journal op-ed of his from 2011:

In the aftermath of the Civil War, members of the 39th Congress proposed amending the Constitution to reverse the Supreme Court's notorious 1857 Dred Scott v. Sandford ruling denying citizenship to slaves. The result is the first sentence of the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The plain meaning of this language is clear. A foreign national living in the United States is "subject to the jurisdiction thereof" because he is legally required to obey U.S. law. (By contrast, a foreign diplomat who travels here on behalf of a foreign sovereign enjoys diplomatic immunity from — and thus is not subject to the jurisdiction of — U.S. law.)

During congressional debates, both proponents and opponents of the citizenship clause agreed with this interpretation of the 14th Amendment. For example, Pennsylvania Sen. Edgar Cowan opposed the clause precisely because it would extend birthright citizenship to the U.S.-born children of Chinese laborers and other noncitizens who "owe [the U.S.] no allegiance [and] who pretend to owe none."

Tellingly, Cowan's racially charged opposition was met with the following response from California Sen. John Conness: "The proposition before us ... relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens.... I am in favor of doing so.... We are entirely ready to accept the provision proposed in this constitutional amendment."

Supreme Court precedent further reinforces this view of the 14th Amendment. In 1898, the court held that a U.S.-born child of Chinese immigrants was entitled to citizenship. In United States v. Wong Kim Ark, it held that the "14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory ... including all children here born of resident aliens."

The court reiterated this view in Plyler v. Doe (1982). The majority held — and the dissent agreed — that the 14th Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of illegal aliens. Likewise, in INS v. Rios-Pineda (1985), the court again unanimously agreed that a child born to an undocumented immigrant was in fact a U.S. citizen.

You can also read his longer (10-page) analysis of the question, published in 2006, here; and you can hear a debate between Ho and Chapman University Prof. John Eastman here. You can also see a view contrary to Ho's, and supportive of Congressional power (though not Presidential power) to resolve the question here, from Yale Prof. Peter Schuck and Penn Prof. Rogers Smith.

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  • Jason Cavanaugh||

    The short version is good enough for anyone who isn't a Trumper.

    If "illegals" as they call them, are not subject to the jurisdiction of the United States, then not only would the 14th Amendment not apply, but the US would also be barred from charging them with the crime of illegally entering the country in the first place.

    So if they want 'zero-tolerance' immigration policies, and to put people in cages, jails, and prisons for illegally entering, then any children born to those people while on American soil are citizens by the 14th Amendment. Period.

  • Remember to keep it all polit||

    If Justice Roberts can create a penaltax to save Obama's ass, can he not create a immigner / foreigrant to save Trump's?

  • Armchair Lawyer||

    It's more of a grey area than that...

    IE, if a Native American decided to rob a bank in the US, they'd certainly be subject to US jurisdiction, and thrown in jail. Yet, they weren't considered "subject to US jurisdiction" according to the 14th Amendment.

  • James Pollock||

    "Yet, they weren't considered "subject to US jurisdiction" according to the 14th Amendment."

    Half true.
    Native Americans were in a legal category that partly treated them as Americans, and partly treated them as foreigners of a separate sovereign. Some of them could (and did) exist entirely separately from American society. Some of them could (and did) live quite normally within American society, as full and free citizens.

    You can see this duality right in the text of the 14th amendment, in section 2.

  • Armchair Lawyer||

    Elk v Wilkins

  • Ridgeway||

    I doubt that analogizing from the way we treated Native Americans in the 19th Century is going to be compelling to any SCT justices (except conceivably Thomas).

  • AmosArch||

    'jurisdiction' could be meant more in the sense of an official relationship through means such as family. A sheriff would stop a mass shooter from gunning down people whether or not he is in a county where he has jurisdiction.

  • JesseAz||

    You have a really silly idea of what jurisdiction means. Even some diplomats are subject to some jurisdictions. Not every foreign agent has blanket immunity.

  • James Pollock||

    "Not every foreign agent has blanket immunity."

    Representatives of foreign governments have whatever immunity has been negotiated by treaty. The ones who are not subject to the jurisdiction of this country have children who are not citizens even if born here. The ones who are subject to the jurisdiction of this country have children that are U.S. citizens if born here.

    They may ALSO be citizens of their parents' countries.

  • ||

    That's only true if you think of jurisdiction as a single thing.

    Its not.

    There are partial jurisdictions- you can be prosecuted for crimes, but not get the right to vote for example.

    Then there is full jurisdiction- you can be prosecuted for crimes and get the right to vote for example.

    Children of non-citizens are the former, not the later.

  • MatthewSlyfield||

    "There are partial jurisdictions- you can be prosecuted for crimes, but not get the right to vote for example."

    This is nonsense. There are full US citizens born to US citizen parents that don't get the right to vote.

    Partial jurisdiction would mean they are subject to some but not all US laws. So they could be prosecuted for some crimes, but not others.

  • Rev. Arthur L. Kirkland||

    U.S. citizenship is one of the most valuable things in the world, and we generally don't let people get hugely valuable things because of the criminal acts . . . of their parents

    I guess some professors have never taught inheritance law, or studied the consequences of multi-generational tax evasion.

  • James Pollock||

    "we generally don't let people get hugely valuable things because of the criminal acts . . . of their parents"

    They won the wars and got to write the laws, so the people who came to North America from Europe and wound up owning all the land aren't "criminals".

  • Rev. Arthur L. Kirkland||

    Now I personally think that categorical birthright citizenship is a bad idea

    I would expect this to be the position of most 'Ted Cruz-class libertarians,' although I have not researched the particulars of Sen. Cruz' claim to citizenship.

  • DjDiverDan||

    Right, Rev., you just keep hurling insults at Trump for being a "birther", all the while snidely insinuating that Ted Cruz might not be a citizen by birth. You truly are a caricature of the looney left.

  • bernard11||

    Well, Trump was certainly a birther. Whatever happened with those investigators he sent to Hawaii?

    As for Cruz, I don't really care about his claim to citizenship. I assume it's fine. But that doesn't change the fact that he's a total asshole, Eugene's opinion notwithstanding.

  • DjDiverDan||

    Thanks. The fact that you think that Cruz is a total asshole confirms that my decision to vote for him over that economically illiterate idiot Beto O'Rourke must be right.

  • Rev. Arthur L. Kirkland||

    The fact that you think that Cruz is a total asshole

    The entire United States Senate considers Cruz a total asshole.

  • Remember to keep it all polit||

    The entire Reason commentariat considers you an asshole. What does that signify? Would you vote for yourself in spite of it?

  • Ridgeway||

    I think it signifies that both the Rev and Ted Cruz are, in fact, assholes.

  • TwelveInchPianist||

    "The entire United States Senate considers Cruz a total asshole."

    This is not the most convincing argument.

  • ||

    That's my thought. If the entire US Senate thinks he's an asshole, that's the BEST reason to vote for him.

  • Rev. Arthur L. Kirkland||

    Disaffected, inconsequential, anti-social, stale-thinking right-wingers need something to cling to. Let it be Ted 'call my wife a pig and I'll kiss your ass' Cruz.

    Prof. Volokh's favorite!

    (Probably not Mrs. Volokh's, though.)

  • MatthewSlyfield||

    Everyone has an asshole. Without an asshole, you can't give a shit. :)

  • bernard11||

    Thanks.

    The fact that you are going to vote for Cruz confirms my opinion that he is not just an asshole, but appeals to morons as well.

  • James Pollock||

    "Whatever happened with those investigators he sent to Hawaii?"

    They found something that would amaze you, according to Mr. T. Since that's what the investigators told him, I'm guessing they found a perfectly valid Hawaiian birth certificate.

  • Brett Bellmore||

    Birtherism was an artificial controversy deliberately maintained by Obama himself. He actually engaged in expensive litigation to keep his birth records secret. And then, as soon as a hearing on the merits was scheduled, gave up his opposition, and the records were released.

    And all this to no point except to keep the controversy raging, when it could have been expeditiously settled.

    It wasn't stupid of him, it kept a lot of people obsessed with following up a trail Obama knew led nowhere, who might have more profitably spent their efforts trying to get his college transcripts or whatever. It made a pretty good red herring.

  • OtisAH||

    That you actually believe the things you write gets harder and harder to believe, Brett. Still, I suppose "Obama was the True Birther" is of the same type as "Hillary ratfucked her own campaign." If nothing else, you're consistent in your unintentional hilarity in that you're consistently unintentionally hilarious.

  • Naaman Brown||

    Obama released his Hawaii State Certification of Live Birth.
    Anyone born anywhere can get that document from the state by producing a Birth Certificate. (In part, the getting the Hawaii Certification is a big thing among foreign born for Pacific Rim business purposes, establishing ID, etc.)
    Not producing a Certificate in response to questions about Obama's place of birth led to speculation that the Certificate was withheld because it would contradict the Certification.
    The idea that the questions were deliberate kept alive did not originate with Brett Bellmore. Obama could have ended the birtherism speculation by releasing his Certificate.

  • Rev. Arthur L. Kirkland||

    Obama could have ended the birtherism speculation by releasing his Certificate.

    People like Brett Bellmore and Donald Trump could have ended the birtherism by refraining from being gullible, belligerent bigots.

    Carry on, clingers.

  • Brett Bellmore||

    Obama releases original long-form birth certificate

    "Washington (CNN) -- The White House released copies of President Barack Obama's original long-form birth certificate Wednesday, seeking to put an end to persistent rumors that he was not born in the United States.

    ...

    Obama released a shorter, legally binding "certification of live birth" in 2008, but failed to persuade members of the "birther" movement."

    This was over TWO YEARS after the controversy began. Over TWO YEARS of pointless litigation. You explain why he went to court to avoid proving where he was born, given the obvious, that he had nothing to hide.

    The only rational explanation is that he wanted the controversy to continue.

  • DrCoke||

    Obama did not release his actual birth certificate simply because,
    unlike the Certification of Live Birth (let's assume it wasn't forged),
    it would list "RELIGION: ISLAM" on it. And that would have been
    a political nightmare, since people accused him of being a secret Muslim.

    The more interesting ones are the Harvard documents that have
    him listed as a foreign exchange student from Kenya or wherever.
    Those either mean that he was in truth a foreign national, or a big liar.
    Either way would have been intolerable. Those records are still sealed.

  • Rev. Arthur L. Kirkland||

    all the while snidely insinuating that Ted Cruz might not be a citizen by birth

    I was mostly mocking the idea of a 'Ted Cruz libertarian,' which the Conspiracy asserts to be a thing.

    Cruz was born in Canada, according to most reports, but I believe he is a citizen. The guy who opined that Cruz was ineligible for the presidency was Trump, as I recall.

  • Brett Bellmore||

    McCain wasn't a natural born citizen, because he became a citizen due to a change in the law some months after his birth, and a "natural born" citizen is someone who is a citizen at birth. McCain was a "naturalized" citizen, and as such should not have been permitted to run for President. I said as much at the time, and wasn't alone in saying it. But the courts don't want to admit that anyone has standing to complain about that sort of violation.

    Cruz may have been born in Canada, but he was a citizen at birth, per the laws in place at the moment of his birth. There's no legal controversy there.

    Obama had to have been born on US soil, because his mother, though a citizen, had not spent enough time in the US to pass on that citizenship per the laws then in effect. (Which have subsequently changed.) The evidence says he was born on US soil, the only reason there was any doubt is that his publicist published a biography that said otherwise, and then he fought the release of his original birth certificate.

    I believe he kept the controversy going deliberately, as a red herring to distract his more dogged foes. Because he dropped the fight fast enough when a judge finally scheduled a hearing on the merits.

  • James Pollock||

    "a 'natural born' citizen is someone who is a citizen at birth"

    Nah. A natural-born citizen is a citizen who wasn't born via Caesarian Section.

    "McCain was a 'naturalized' citizen, and as such should not have been permitted to run for President. "

    McCain's freedom to run for President, just like anybody else's, is government by the 1st Amendment. Anyone can run for President. Congress shall make no law that says otherwise.

  • Smooth Like a Rhapsody||

    Why don't you give us a precis of your preferred immigration policy?

  • Eddy||

    Criticizing Trump and all his works, of course.

  • James Pollock||

    "Why don't you give us a precis of your preferred immigration policy?"

    Take the people who want to come here and can get here, unless they're sick.
    It's what we used to do, and it worked out pretty well for us.

  • JesseAz||

    We also ensured they wouldn't be a public charge. Odd how you forgot that part.

  • James Pollock||

    "We also ensured they wouldn't be a public charge."

    So write the welfare laws so that recent immigrants are ineligible. Oh, wait. That's ALREADY IN THERE.

  • ||

    Except that in the past, we had plenty of space, plenty of low skill jobs, and we weren't taking low IQ mestizos.

  • James Pollock||

    "Except that in the past, we had plenty of space, plenty of low skill jobs, and we weren't taking low IQ mestizos."

    Let's take these one by one, shall we?

    Space:
    When we decided we didn't have enough, we arranged to get more.

    low-skill jobs
    We have plenty of these, along with highly-skilled jobs, too. (H-1 visas run out within minutes of becoming available each year.)
    If someone else can do your job better or cheaper, you deserve to lose it.
    If you haven't noticed, the jobs migrated to where the workers who wanted them were. If those workers were here, maybe we could hold on to those jobs, and assemble our own damn cell phones.

    mestizos:
    Not everybody is racist like you.

  • Careless||

    Really, James? When, exactly? Because that was never how it worked.

  • Sarcastr0||

    Careless, I am under the the impression that immigration absolutely was barely regulated in the 19th century.

  • Brett Bellmore||

    You can get away with barely regulating immigration, when you don't have a welfare state, but do have a severe labor shortage.

    Neither precondition for free immigration exists anymore.

  • James Pollock||

    "Neither precondition for free immigration exists anymore."

    Your facts are being filtered by your bias.
    There are already several million immigrants here not using the welfare state, and filling jobs.

  • Sarcastr0||

    You and Careless need to have a talk it seems.

  • James Pollock||

    I'll consider it, right after Careless has a talk with reality. Until then, it would be pointless.

  • Sarcastr0||

    Haha - I meant Brett and Careless. Comment threading fail!

  • MatthewSlyfield||

    "Take the people who want to come here and can get here, unless they're sick.
    It's what we used to do"

    If you go back far enough, we didn't even do that.

    The first entry restriction was enacted in 1875 and that was to prohibit entry not of the sick, but of prostitutes and convicts.

  • QuantumBoxCat||

    Trump better get his pen and start writing that Executive Order quick. Many people are saying that the caravan of 10 million immigrants that is storming the country consists of close to 3 million women who are only days away from giving birth. If this ins't the time to sound the emergency sirens, then I don't know what is.

    In fact, it would probably be best to institute emergency measures and place all upcoming and future elections on indefinite hold. When a nation is under attack like this political leadership shouldn't be subject to elections. I'm pretty sure that could be done via executive order too.

  • Brendan||

    I'm not sure why this is needed. The kid(s) can stay and be citizens, but the parents have to leave and are subject to a 30 year entry denial due to their initial illegal entry.

    Now, nothing stops the parent from taking their kid and going back to whence they came.

  • ||

    Only to return 30 years later by the grace of their child's passport so that we can pay for their sure to be minimal end of life expenses.
    What a coincidence.

  • Brendan||

    Alternatively, it could be a lifetime ban. I would be OK with that too.

  • ||

    And then you liberals will be saying how "cruel" it is to "separate families"

  • James Pollock||

    Which it is. And?

    (Before answering, take time to note the difference between "you have to go, and you can decide whether or not to take your US citizen child with you", and "we take your kids away from you, and keep them in cages. You may or may not ever see them again."... these are the policies pursued by the last two U.S. Presidents.)

  • Social Justice is neither||

    Sorry James but to me that's almost as nonsensical as saying it's cruel to deprive Bernie Madoff's wife and kids of the lifestyle they're accustomed to because they didn't do anything wrong, just benefited from the wrongdoings of someone else.

  • DjDiverDan||

    It is so hard to tell sometimes whether a Trump action is just complete idiocy born of an appalling ignorance of the Constitution, or just red meat for his political base which he knows well won't ever go anywhere. I suspect that this action falls in the latter category, but I can't be sure that it isn't the former, or even both.

  • James Pollock||

    Bet both.

  • iowantwo||

    Or its a way to get the Dems to scream at the top of their lungs that illegal alien babies are more important than any US citizen.

    Mission accomplished.

  • James Pollock||

    "Or its a way to get the Dems to scream at the top of their lungs that illegal alien babies are more important than any US citizen."

    If that was the goal, it is a resounding failure.

  • Rev. Arthur L. Kirkland||

    Or its a way to get the Dems to scream at the top of their lungs that illegal alien babies are more important than any US citizen.

    Right-wingers should concentrate on improving their lives and can't-keep-up communities (with education, reason, tolerance, science, diversity, and progress) rather than obsessing about immigrants.

    Or, stick with the gullibility and bigotry, and watch it end just as it did with those who hated and discriminated against Italians, Jews, Asians, women, the Irish, blacks, eastern Europeans, agnostics, Hispanics, Catholics, other Asians, atheists, gays, iand others during successive waves of ignorance and intolerance driven by immigration, superstition, skin color, perceived economic pressures, and low-grade character.

    Carry on, clingers. So long as your betters permit, anyway.

  • Martinned||

    Agreed. I think ius sanguinis is perfectly fine, morally speaking, but it's difficult to see how you'd get there in the US other than through a constitutional amendment. That said, I look forward to reading the opinion of 4 or 5 Supreme Court Justices explaining the opposite.

  • James Pollock||

    I'm pretty sure that an attempt to override the Constitution by executive order would be per curiam.

    Judges are taught to think long-term, and they all know that eventually, they'll have a President in office with whom they disagree politically, and allowing a President to ignore the Constitution when the President agrees with you creates a precedent that could be used by a President who doesn't.

    In short, if some President was claiming the authority to order, by executive order, that anyone who can get here will be granted citizenship, that would ALSO be shot down per curiam in short order.

  • JesseAz||

    So tired of this idiotic argument. The constitutional question of the fourteenth implying just Solis has never been decided. Pretending it has and it is known and accepted constitutional jurisprudence is idiotic. This very topic has been debated for decades, it has not been ruled on.

  • Dilan Esper||

    You do realize that you are commenting on a post that cites several US Supreme Court cases deciding the very question you are saying is undecided.

  • Leo Marvin||

    You're wrong.

    No puppet.

    You're the puppet.

  • Brett Bellmore||

    No. The question has been decided for the children of legal resident aliens, who have legally affirmed some degree of allegiance to the US. It has never been litigated for the children of people here illegally.

  • Sarcastr0||

    Brett, the logic wasn't limited to residents. You're putting artificial limits based on your policy preferences.

    Always fun to see conservatives turn on a dime and become the unprincipled cartoons they accuse liberals of being.

  • Brett Bellmore||

    I've read the case, and, yes, the logic didn't apply to people here illegally. They actually cited English common law to the effect that birthright citizenship didn't apply to invaders.

    And illegal immigrants are every bit as much invaders as any invading soldier, being here contrary to our laws.

  • Sarcastr0||

    That's not what an invader is. This definition is specified by your politics and politics alone.

    Never go full Trotsky.

  • James Pollock||

    "They actually cited English common law to the effect that birthright citizenship didn't apply to invaders."

    Unfortunately for your argument, this isn't a question of English common law, it's a question of U.S. Constitutional law.

    Does anyone else remember when conservatives were strict contructionists, and claimed that any other approach to interpreting the Constitution was unprincipled and wrong?

  • Gunstar1||

    Actually it is a question, which is why Blackstone is quoted so often by SCOTUS.

  • Brett Bellmore||

    Geeze, have you actually READ US v. Kim Wong Ark? You don't sound like it.

  • MatthewSlyfield||

    "I've read the case, and, yes, the logic didn't apply to people here illegally."

    The logic could not possibly have excluded people here illegally, as at the time the person that case was about was born, there were no entry restrictions at all, so it wasn't possible at the time to be here illegally.

  • James Pollock||

    " The constitutional question of the fourteenth implying just Solis has never been decided."

    Gee, then, I guess it's a good thing that the text of the Constitution just comes right out and says it, and no inferral is needed.

    The reason the 14th amendment NEEDED a birthright citizenship clause is because they needed to settle the question of citizenship status for a whole bunch of people who had not previously been citizens, nor born of citizens. The 14th amendment settles the question... they're citizens of the United States, and of the state in which they reside, period, full stop, no quibbling.

  • James Pollock||

    "So tired of this idiotic argument"

    Then WHY do you keep repeating it?

  • Mindscape||

    The US is one of very few countries who allow this sort of citizenship. You cannot just go to France, give birth and expect your child to have French or even dual citizenship. It's a ridiculous practice and it should be abolished by amendment if necessary. There are entire industries dedicated to bringing foreign pregnant women into the US so they can give birth.

  • bernard11||

    Listen to Fox much?

    There are about 30 countries, including Canada, that have birthright citizenship.

    Change the channel and you might hear something other than lies.

  • Armchair Lawyer||

    In terms of the first world, there's the US and Canada, and that's it. No other first world country (none of Europe, none of Asia, none of Africa) has birthright citizenship.

    I mean, I suppose you can travel to Ecuador or El Salvador to get birthright citizenship for your to-be newborn, but it doesn't have the same appeal for most people

  • AmosArch||

    Progs are always screaming how we should be exactly like the rest of the world (western europe). The vast majority of the world doesn't have jus solis as unconditional as the US so whats the problem?

  • JesseAz||

    Fuck off Bernard. Canada and us are the only structured/first world countries that do it.

  • James Pollock||

    No true Scotsman has birthright citizenship!

  • Rev. Arthur L. Kirkland||

    Fuck off Bernard. Canada and us are the only structured/first world countries that do it.

    Let's clarify terms. Do you contend that Alabama, Wyoming, West Virginia, Mississippi, west Texas, South Carolina, Kentucky, Tennessee, central Pennsylvania, and Idaho are "structured/first world?" What about rural America in general?

    Thank you.

  • RoyMo||

    Well you will have to include Eastern Washington since the last half dozen times I flew to Spokane the wifi wasn't working, however I have never had that problem in Boise, Kentucky, or West Texas, except when flying to Boise, California, Denver, Minneapolis, or Chicago from Spokane.

  • Mindscape||

    Written like a true coastal elitist. But *I'm* the bigot. lol

    Yes, there are businesses whose specific purpose is to bring pregnant women into the US for citizenship. I'm sorry if you are unaware of this, but please do some research before dismissing it because it hurts your feelings.

    Feel free to have your child born in South America or Africa for their citizenship (and all the doors it opens). I value US citizenship and don't want it given away for free. My (legal) immigrant wife is working toward getting hers. So please, tell me again how I hate foreigners and (suggestively) brown people.

  • regexp||

    entire industries

    You (and Trump) make is sound like Amazon.com is shipping immigrants in containers by the millions. This literally is not happening. Like any law - it can be and is abused. But entire "industries" do not exist around this practice. And even if it did. Good. We gain more than we lose.

    I'm going to guess that it was your ancestors beating my Irish born ancestors with pipes in NY when they arrived. The story doesn't change. It was bigotry then. Its bigotry now.

  • JesseAz||

    How ignorant are some of you? Yes, there are entire industries around birth tourism. For fuck sakes. This isn't even an arument.

  • Careless||

    As ignorant as they need to be to support their desires.

  • OtisAH||

    Self-awareness is not just a river in Egypt, you know.

  • James Pollock||

    "Yes, there are entire industries around birth tourism."

    And those industries are airlines, hotels, and hospitals, for all of whom birth tourism is business they will accept, because it's legal and there's nothing wrong with it. But birth tourism is a tiny, tiny part of their business model.

  • DrCoke||

    "You (and Trump) make is sound like Amazon.com is shipping immigrants in containers by the millions."

    Looking forward to the South Park episode...

  • Harvey Mosley||

    It's situations like these that I'm tempted to become a living constitutionalist. I don't think its a good idea for the children of tourists, temporary visitors, or illegal aliens to have birthright citizenship. But the Constitution says differently so I'm stuck with it.

  • Careless||

    I can't say I'm tempted, but I understand why they do it.

    But hey, as a libertarian, I don't win any of these arguments constitutionally or legislatively, so I'm used to not getting my way and don't throw constant tantrums like, you know, half the country the last two years

  • Armchair Lawyer||

    The key issue is the SCOTUS case of Elk v Wilkins, and I'd be interested in Professor Volokh's opinion here.

    Basically, it involved Native American citizenship. A Native American, born in US territory, renounced their tribal affiliation, and tried to claim US citizenship via the 14th Amendment. It was denied. (A separate act later gave all Native Americans US citizenship).

    Same issue applies. Native Americans are also need to legally obey many US jurisdictions (and needed to legally do so at the time). But they aren't necessarily "subject to US jurisdiction". At least according to the law.

    So, how does one resolve this with the original argument?

  • David Nieporent||

    Elk turned on the unique status of Indians. It has no applicability to any other situation. Wong Kim Ark is the relevant decision.

    (Also, you're mistaken about Elk. He was born on an Indian reservation, _not_ in US territory.)

  • Dilan Esper||

    It's almost as if the Fourteenth Amendment specifically discusses Native Americans, and there's an entire body of jurisprudence and practice that the authors were referring to when using the phrase "subject to the jurisdiction" with respect to some Native Americans.

  • Armchair Lawyer||

    If there's one thing we've learned about the 14th amendment, it's that it doesn't matter what the authors meant or were thought to be referring to, it can be expanded, extended, and twisted to anything needed by the text.

    Because I seriously doubt when it was written, the authors considered that they were actually legalizing abortion.

  • Dilan Esper||

    Armchair, that's just the worst sort of argument.

    We actual (not armchair) lawyers get paid a lot of money because, in fact, constitutional law exists, and Roe and Casey did not and do not mean that constitutional text or original understanding is never relevant or that courts make everything up as they go along.

    The authors didn't think lots of things. The authors of the Fourth Amendment didn't think they were banning thermal imaging in houses. The authors of the First Amendment didn't think they were banning some regulations of pornography. That's not the standard for interpreting broad and diffuse constitutional text.

  • Armchair Lawyer||

    Wong Kim Ark is a different situation. It involves the children foreign nationals who legally entered, legally resided in, and legally had a place of business in the United States.

    Here's the issue. Once you consider one "unique situation", such as the Native American population, you need to consider whether there are other "unique statuses" that the law could also be expanded. to.

    Also, Indian reservations "are" US territory. They are a reserved federal land.

  • Dilan Esper||

    "Wong Kim Ark is a different situation. It involves the children foreign nationals who legally entered, legally resided in, and legally had a place of business in the United States."

    There was no legal/illegal at the time.

    When the legal/illegal issue came up in Plyer, the Court was 9-0 in holding that Wong Kim Ark applied to both.

  • Armchair Lawyer||

    1. There was illegal at the time. Notably the Chinese exclusion act.

    2. The court was not 9-0 in this decision. It's worth looking at.

    3. Also interesting is the case of the Philippines, and how federal courts have repeatedly refused to extend Wong Kim Ark to US citizenship for people born in the Philippines between 1898 and 1945

  • Dilan Esper||

    Armchair:

    The Court in Plyer wasn't 9-0 on the issue of education for undocumented children, but it certainly was 9-0 on Wong Kim Ark making no distinction between legal and illegal immigrant.

    US territories are a different issue. The Insular Cases held that the Constitution doesn't necessarily follow the flag. I think American Samoa still doesn't extend American citizenship. That's up to Congress.

  • Brett Bellmore||

    I read Wong Kim Ark just yesterday, and I think you're making a mistake there saying that they affirmatively didn't make that distinction. It wasn't relevant, and they did mention English common law excluding the children of invaders from birthright citizenship.

  • Brett Bellmore||

    "The Court in Plyer wasn't 9-0 on the issue of education for undocumented children, but it certainly was 9-0 on Wong Kim Ark making no distinction between legal and illegal immigrant."

    So, I look up Plyer, and what do I find?

    "Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws."

    They rule that "within its jurisdiction" is irrelevant to equal protection and due process, because those sections don't contain that phrase.

  • Brett Bellmore||

    "The Court in Plyer wasn't 9-0 on the issue of education for undocumented children, but it certainly was 9-0 on Wong Kim Ark making no distinction between legal and illegal immigrant."

    So, I look up Plyer, and what do I find?

    "Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws."

    They rule that "within its jurisdiction" is irrelevant to equal protection and due process, because those sections don't contain that phrase.

  • DrCoke||

    A well-drafted Amendment, being necessary for interpretation, the right to clarifying clauses, shall not be infringed.

  • RoyMo||

    While functionallly that is all reservations are, there is considerable treaty law that says otherwise, of course indian treaty law has gone from Mr Marshall has his ruling to Mr Marshall would hardlg bother to rule.

  • TheAmazingEmu||

    Elk v. Wilkins is easily distinguishable because the appellant was born on an Indian Reservation and subject to the jurisdiction of the tribe. He left the reservation and tried to argue that he was a US citizen because he renounced his Indian citizenship. The analogy would be an immigrant comes to the United States and argues he's entitled to US citizenship automatically. This would be messier if Elk had a child and argued the child was a US citizen, but that wasn't the case.

  • Naaman Brown||

    I knew a few people nn the 1980s and 1990s who researched their ancestry to see if they deserved to claim to be Cherokee; one already had relatives living in the nation and could prove ancestry. Other were disappointed; they failed to satisfy the tribal government's requirements. I suspect they would consider Elk to be a fool.

  • Mesoman||

    The creator of the 14th Amendment stated that it did not apply to children of individuals not here legally. That's good enough for me!

  • David Nieporent||

    You are, to put it charitably, mistaken. No such statement was made; indeed, that would hardly have made any sense, since there essentially wasn't any such thing as "individuals not here legally."

  • DjDiverDan||

    And therein lies the real problem with original intent originalism. One can almost always find someone who participated in the process of drafting the Constitution or an Amendment with an idiosyncratic understanding of what it means. But the only relevant consideration is what did those who voted to ratify the Amendment understand its meaning to be, because under our Constitution it is not the scriveners who drafted the Amendment, but the people who voted to ratify it, who are sovereign.

  • AmosArch||

    If a giant screen appeared over 1868 America and broadcast neutral objective factual reports of how southern countries were offloading their poor and criminal elements into the US to tip elections toward people who would push for transgender bathrooms, taxpayer funded sexchange surgery for little children and convicts, and criminalization of gendered pronouns; I'm fairly certain the vast majority of the population would be in favor of rewriting the Amendment to more clearly prohibit anchor baby citizenship.

  • James Pollock||

    " I'm fairly certain the vast majority of the population would be in favor of rewriting the Amendment to more clearly prohibit anchor baby citizenship"

    Yes, if such a disinformation campaign existed in 1868, some stupid people would fall for it, much like today.

  • RoyMo||

    I think the ability to do that would render the issue moot

  • ||

    Citation, please.

  • James Pollock||

    "the premise behind any such order must be that children of illegal aliens aren't covered by the Amendment and § 1401"

    This inference would be correct for a person who understands and respects the Constitution of the United States. But we are not talking about such a person, we are talking about Donald Trump.

    The premise behind such an order is that DJT thinks crowds will cheer for it, whether it has any effect at all or, as the case turns out to be, that it will not.

  • AmosArch||

    "An executive order can't supersede either the Constitution or a constitutionally valid federal statute"

    It worked for Obama the past 8 years...

  • Sarcastr0||

    The other side is wrong therefore rules don't apply to my side

  • OtisAH||

    I'm just glad we're back to the same yawning over EO's we had for the eight years prior to Obama. A little less yelling is nice and allows for more yelling about other things.

  • Eddy||

    "How about you, do you find it risible, when I mention my friend, Judge Ho?"

  • captcrisis||

    Undocumented aliens are not a threat to us and it is racist to suppose otherwise.

  • AmosArch||

    Who said anything about race? maybe you are the racist

  • captcrisis||

    I don't believe that for a minute and neither do you.

  • Eddy||

    Oh, right, the topic of the post.

    Some enforcement questions about any proposed amendment to the 14th Amendment -

    would there be a statute of limitations within which the feds would have to challenge a person's citizenship claims?

    would the burden be on them to show their mother was a citizen or legal permanent resident, and/or that she was married to someone who was?

    Would being born on U. S. soil to permanent residents be sufficient for U. S. citizenship?

    Given current trends, would the adopted children of same-sex couples be entitled to the same rights as natural children of regular couples?

  • AmosArch||

    >>>>>>>>>>>>>>>
    Given current trends, would the adopted children of same-sex couples be entitled to the same rights as natural children of regular couples?
    >>>>>>>>>>>>

    Human rights activists will go to war if loving couples like Miguel 'The Hyena' Santos and Jose 'MS13 for Life' Pero are not able to bring 100 of their beautiful 'adopted' children every month over the border. So probably.

  • Sarcastr0||

    Yep, no racism here.

  • Brett Bellmore||

    That's right, that wasn't racism, it was "criminal"ism.

  • Sarcastr0||

    Yeah, that last paragraph was pure of anything racial.

  • mad_kalak||

    Hispanics have historically been considered white.

  • gormadoc||

    That relies on only one definition of race, and not on the older definition of common lineage. "German race" is a good example; "race of Ham/Shem/Japheth" another. The record is replete with examples of "race" being used where we would use "nation" instead, especially when ethnicities were broken up across national boundaries, e.g. "Greek/Italian/German/Nordic race".

    Also, you're flat wrong unless you're only talking about Iberians, which is unlikely in most situations. Many are white but many others are considered Native/Indigenous Americans/American Indians. Many are black. Most are mixed race.

  • David Nieporent||

    would there be a statute of limitations within which the feds would have to challenge a person's citizenship claims?

    If there were an actual amendment to the constitution, I'm assuming it would not be retroactive. (It could be, but I'm betting it would not be.) If, however, the 14th amendment were reinterpreted to not apply to children of illegal aliens, then those people would never have been citizens and the concept of a statute of limitations would make no sense.

  • Brett Bellmore||

    Yeah, a statute of limitations wouldn't make sense, but let's face it, that would barely slow the Court down.

  • JesseAz||

    Failed to mention in the article is that illegal aliens facing changes are granted assistance from their home country of origins consulate if requested. This sure seems like a benefit of someone who is not fully under us jurisdiction.

  • Dilan Esper||

    The word "fully" isn't in the 14th Amendment.

    And that makes perfect sense. Under 19th Century law, as is the case now, it was possible to be born a dual citizen. Indeed, this was possible before the 14th Amendment was adopted. If two Irish nationals moved to the United States in 1850, established domicile in New York, and started a family, their children would be citizens under pre-14th Amendment law and subject to the jurisdiction of the United States. And yet it is entirely possible that the United Kingdom might consider them citizens as well and subject to its jurisdiction.

    If the 14th Amendment were limited only to those people who were subject "fully" to US jurisdiction, which you seem to think would mean not able to claim a benefit from another country, than there would be whole classes of people, such as children of persons of different citizenship or nationality, children whose family lines are given citizenship in other nations (e.g., Israel), children of foreign nationals born in the United States, and children of American nationals born in other nations that give birthright citizenship, such as Canada, who are all not "fully" subject to US jurisdiction in the sense that they can obtain citizenship benefits from other countries.

    And NOBODY thinks the 14th Amendment means that.

  • David Nieporent||

    Moreover, Jesse makes a mistake common to the FRAUD! people¹ in interpreting the 14th amendment: the 14th amendment says that the child, not the parents, must be subject to the jurisdiction of the U.S.

    ¹Not necessarily saying that Jesse is one of those, but his statement echoes theirs. (By the way, where's Bingham guy when you need him?)

  • James_Herms||

    No. The child must have been "_born_ . . . subject to [its] jurisdiction." The child must have been subject to (=owed allegiance to) the US government _at the moment of his or her birth_.
    And if the parents were illegal aliens at the time, they may not have owed the United States much of anything! More particularly: If they (and by extension their newborn child) were receiving no "benefits of the protection of the state," they (and their newborn child) owed no allegiance to its government.
    The Amendment's wording plainly indicates that being born "in the United States" does _not_ make you subject to its jurisdiction. For if it did, that adverbial phrase would be surplusage.

    But what if the parents were resident aliens?
    Resident aliens do owe "temporary allegiance" to the US government during their period of residence. Consequently their newborn child does too - at the moment of its birth. So it's subject to jurisdiction of the US _at the moment of its birth_. It's a citizen.

  • Sarcastr0||

    Trying to weasel around Constitutional text isn't really on-brand for conservatives. Or is it, these days?

  • TheAmazingEmu||

    Receiving a benefit isn't the same thing as not being under the jurisdiction of US law. All US laws apply to persons present in the United States. This is different from ambassadors where some laws don't apply and different from Native Americans born on reservations who were not subject to many laws, including most state laws, at the time of the 14th Amendment.

  • James_Herms||

    They may indeed be under the US government's jurisdiction (=power of dominion). But they may not be receiving the benefits of its protection. If not, they owe the US no allegiance, and they're not formally "subject" to its jurisdiction.
    They unquestionably do owe allegiance to the government of the state that they were (and are) citizens of.

  • Bored Lawyer||

  • M.L.||

    I disagree, and I think reasonable minds can disagree on this.

    John Eastman makes a very compelling case here, and this excellent exchange between him and the opposing viewpoint is very illuminating.

    One comment of the author of the 14A, Senator Howard, is particularly debated. He noted that the clause was "simply declaratory of what I regard as the law of the land already" and would not 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." As Eastman explains, the weight of the evidence and context strongly suggests that he was not merely referring to diplomats here, and that a disjunctive rather than a conjunctive should be read into that statement.

    At the very least, review of the legislative history clearly indicates that "subject to the jurisdiction thereof" meant something more than merely being subject to "an entity's power to impose its legal will on someone" as EV puts it here.

  • M.L.||

    More abstractly, Rep. Amash tweeted today that he believed the clause was derived from the British common law birthright subjectship. But as explained here, this is not true:

    Blackstone speaks only of "birthright subjectship" or "birthright allegiance," never using the terms "citizen" or "citizenship." The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a "debt of gratitude." According to Blackstone, this debt is "intrinsic" and "cannot be forfeited, cancelled, or altered." Birthright subjectship under common law is the doctrine of perpetual allegiance.

    America's Founders rejected this doctrine.
  • M.L.||

    Finally, while some of these arguments make the case that Wong was wrongly decided, Wong applied to a lawful permanent resident. The case that the clause does not apply to illegal aliens, tourists, visitors and so on who are not lawful permanent residents, is even stronger.

    I doubt that Trump can impose this change by Executive Order, but Congressional action on this issue has been considered for decades. Although, if the quoted statute is all that Congress has had to say on the matter, then perhaps there is a case to be made for an EO.

  • TheAmazingEmu||

    What in Wong Kim Ark made the distinction between legal residents and those here unlawfully? What in the text of the amendment indicates that a distinction is to be made? If it's in the language of "subject to jurisdiction" why would lawful permanent residents be subject to our jurisdiction and not illegal immigrants? The latter clearly is subject to US law unless you take the position they can't be deported or prosecuted for border crossings.

  • M.L.||

    From the 2nd link: "Now Chavez and other critics of this original understanding point to Wong Kim Ark, a case decided thirty years after the 14th Amendment was passed, in which the Supreme Court held that the child of lawful, permanent Chinese immigrants was, by virtue of his birth on U.S. soil, a citizen. They also note, correctly, that there is language in the opinion to suggest that birth on U.S. soil is alone sufficient for automatic citizenship, no matter what the circumstances. But any such language is dicta because the case did not involve a child of parents who were here only temporarily, much less illegally. Wong Kim Ark's parents were lawful, permanent residents who were "domiciled" in the United States, to use the Court's word. Application of that holding to temporary sojourners, much less to those who are only here illegally, is well beyond what the actual holding of the case was. The Supreme Court has never held otherwise."

  • Brett Bellmore||

    In fact, the decision cited English common law which suggests that mere birth on US soil wouldn't be enough. They didn't need to get into whether that language would apply to illegal aliens, because Wong Kim Ark's parents weren't illegal aliens.

  • TheAmazingEmu||

    It's not dicta if it's part of the ratio decidendi. Precedent doesn't work by requiring all four corners of the previous case to be precisely identical to this case. It's to look at the legal principles in that case and apply those principles to this case.

  • David Nieporent||

    Finally, while some of these arguments make the case that Wong was wrongly decided, Wong applied to a lawful permanent resident. The case that the clause does not apply to illegal aliens, tourists, visitors and so on who are not lawful permanent residents, is even stronger.

    No, it's not. At least with respect to illegal aliens, one can make the argument that the adopters of the 14th amendment didn't predict that category and would've excluded those people if they had known. But that argument has no force with respect to tourists or visitors; the adopters obviously knew of the existence of such people and yet did not exclude them from the language of the 14th.

    "Lawful permanent resident" is an anachronism in discussing the 14th.

  • M.L.||

    From the 2nd link: "She objects to the fact that I described the parents of Wong Kim Ark as "lawful, permanent residents," claiming that "[t]hey were not" because there was "no such immigrant category in 1870 when they arrived." But I nowhere make the anachronistic claim that Wong Kim Ark's parents were members of the modern lawful, permanent resident immigration category (i.e., holders of green cards). Instead, I used the phrase as synonymous with the technical legal word that the Court actually used but whose meaning escapes many people today. Here's what I wrote: "Wong Kim Ark's parents were lawful, permanent residents who were "domiciled" in the United States, to use the Court's word." "

  • M.L.||

    "But that argument has no force with respect to tourists or visitors; the adopters obviously knew of the existence of such people and yet did not exclude them from the language of the 14th."

    Yes, they did, when they specified "and subject to the jurisdiction thereof." This did not only exclude diplomats. It also excluded "foreigners" and "aliens" as Sen. Howard explained, as well as Indians:

    "Chavez stakes her position on the claim that the children of diplomats were the "single exception" to the automatic citizenship mandate. But when pressed during the debate about another "exception," namely, whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction; "[n]ot owing allegiance to anybody else" . . . And Senator Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now" (i.e., under the 1866 Act, which exempted both Indians and all those who were subject to a foreign power)."

  • M.L.||

    cont'd

    "That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin to explicitly exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant. The positively phrased "subject to the jurisdiction" language covered both exclusions in the 1866 Act—"not subject to any foreign power" and "excluding Indians not taxed." The Indians were not diplomats, so the claim that Howard intended only a "single exception" for diplomats is patently false."

  • David Nieporent||

    Yes, they did, when they specified "and subject to the jurisdiction thereof." This did not only exclude diplomats. It also excluded "foreigners" and "aliens" as Sen. Howard explained,

    He did no such thing. Dishonest people keep wanting to put an "or" in Howard's statement, but it isn't there.

  • M.L.||

    It's not dishonest. It's based on an honest reading of the record, which indicates that the [or] helps to clarify the meaning. Of course, there's no "and" there either, and in any case, the notes of the record are not a verbatim transcript.

  • Purple Martin||

    Your final point seems to be that since no verbatim transcript exists, Sen Howard's statement cannot be definitively parsed, correct?

    Then why may the statement be introduced at all? (with or without Michael Anton's insertion of a bracketed "[or]")

  • David Nieporent||

    It's not dishonest. It's based on an honest reading of the record, which indicates that the [or] helps to clarify the meaning. Of course, there's no "and" there either, and in any case, the notes of the record are not a verbatim transcript.

    As Purple Martin notes below, you can't cite something and then when people point out that you're mis-citing it, claim that it's okay because the quote isn't really accurate anyway.

    But not only is your quote not an honest reading of the record, but it isn't an intelligent one. "Foreigners" and "aliens" are the same thing, so inserting an "or" would make no sense.

    (You are correct that there's no "and," but I don't see how that helps your argument, since I am not trying to insert an "and." I am saying that he is citing one thing, not three, so an "and" wouldn't be necessary there either.)

  • Dadlobby||

    I expect the President isn't going to "deny citizenship" as much as he'll interpret they do not have citizenship and then remove all U.S. benefits form them agency by agency. This forces them to file in court which will move the issue before the Supreme Court. Congress (the do nothings of the last 30 years) will now be forced to address the issue of immigration or let it go to the Supreme Court for them to decide. The President "wins" if congress acts, "wins" if the Supreme court acts, and has a scapegoat in either (or both) if he "loses" in both avenues, thus he "wins" and can take the issue to the people in 2020. Check, Check, Checkmate.

  • Dilan Esper||

    "At the very least, review of the legislative history clearly indicates that "subject to the jurisdiction thereof" meant something more than merely being subject to "an entity's power to impose its legal will on someone" as EV puts it here."

    This isn't an argument. WHAT does it mean?

    People who are telling you that the 14th Amendment enshrines birthright citizenship have an answer to that question. It means some children of diplomats and some Native Americans, who were born under another sovereign's jurisdiction.

    If you don't like that answer, you have to provide another one. And you have to provide one that works.

    This is key. The law isn't some historical discussion in a dorm room where you just throw out "what if's" and underbaked theories. The law has to work. It has to have a certain amount of consistency. And it has to not lead to absurd results.

    Good appellate judges-- liberals AND conservatives-- ask precisely these questions at oral arguments.

    So what, exactly, does "subject to the jurisdiction" mean? And note, if your answer excludes not only children of illegal immigrants but a bunch of other people who everyone considers to be American citizens, then you lose.

  • mad_kalak||

    Best comment this thread.

  • M.L.||

    Speaking of dorm room discussions, thanks for the "b-b-but where do we draw the line?!?" interjection.

    While I haven't fully briefed or been briefed on the matter, one simple answer, which would appear to align with the original understanding of the clause, would be lawful permanent residents. No illegal aliens, no tourist visas. If you actually read the scholarship on this issue, it suggests that the question who is "subject to the jurisdiction", depends in part on things that Congress has the authority to define.

  • James Pollock||

    "one simple answer, which would appear to align with the original understanding of the clause"

    Another simple answer, which aligns quite well with the original understanding of the clause, is that birthright citizenship applies to people who are born here.

  • TwelveInchPianist||

    "U.S. citizenship is one of the most valuable things in the world, and we generally don't let people get hugely valuable things because of the criminal acts (even if only mildly criminal) of their parents..."

    We certainly don't withhold hugely valuable things from people because of the criminal acts of their parents. Citizenship is a two-way street. The government derives its powers from the consent of the governed, and citizenship of the governed is how the government gets this consent.

    Participation in government is a human right, and to the extent that the government can deprive this right from aliens, this derives from the government's right to control traffic across the borders. Children born in the US have human rights distinct from their parents, and they have never crossed the border.

    There is absolutely zero moral justification for withholding citizenship from anyone that is born is the US.

  • Brett Bellmore||

    "We certainly don't withhold hugely valuable things from people because of the criminal acts of their parents."

    We certainly do, if the hugely valuable things were the product of the criminal acts. If your father robs a bank and buys you a house, you don't get to keep it.

    Now, if he pays for your education with the proceeds of the robbery, you get to keep the education, but if we're talking something that can actually be taken away? Darned straight it gets taken away.

  • James Pollock||

    "if we're talking something that can actually be taken away? Darned straight it gets taken away."

    No, it usually doesn't. That's why your house doesn't belong to Joe Two-Feathers and Nancy Big Elk.

  • Smooth Like a Rhapsody||

    Nifty footwork dodging that argument.

  • James Pollock||

    You're high.

  • Brett Bellmore||

    It will just as soon as they win a court case against me.

  • James Pollock||

    Well, to hear some of the folk around here talk, it sounds like they think that Joe and Nancy should just open fire on anyone who came here without their permission.

  • M.L.||

    TIP:

    Really? Are you telling me that you are prepared to defend birth tourism and maternity hotels on policy merits?

  • ||

    If the 14th Amendment creates a right to spread HIV through another man's butt, it can mean that children of illegals aren't Americans.

  • mad_kalak||

    Careful with that logic, you're in danger of turning into a living constitutionalist.

  • AmosArch||

    Hmmm...this is weird....I'm too lazy to look back but doesn't djDiver usually agree with Trump on like...everything? And I can't remember Pollock's leanings that well but he's a lib?

    Its just strange seeing a bunch of posters I for some reason remember as rightleaning suddenly bashing Trump on this random topic.

  • Sarcastr0||

    Are you for real? Do you truly see everything through the lens of one side always with Trump and all others bashing Trump?

    Do you know how principles work?

  • James Pollock||

    "And I can't remember Pollock's leanings that well but he's a lib?"

    If you read what I write and come away with that, you're an idiot.

  • Smooth Like a Rhapsody||

    If the children are citizens, they become parentless wards of the state. Whereupon Republicans are heartless fascists for "breaking up families"...i.e., enforcing the law; if they are to be kept with their parents, you are privileging parental rights over the putative citizenship rights of the children, and the children get deported.

    Please: liberals--I'm looking at you Sarcastro, Arthur, and Bernard--pick one...and please make it before election day.

  • James Pollock||

    For several decades now... through both Democratic and Republican administrations... the law has been largely carried out the same.
    There aren't enough people authorized by law to hear deportation cases to hear all the deportation cases. So some cases get pushed the the front of the line, and everyone else waits. The groups that get deportation hearings right away are A) recent arrivals (the folks they catch just inside the border), B) people with criminal convictions, and C) people who've been deported at least once before.
    So, the policy of families where one or more of the children is a citizen and one or more of the parents is not goes like this: The parent gets to make a case that some aspect of US law allows them to stay. That's the due process requirement of the Constitution being applied. Assuming that no law does allow them to stay, AND they get to the point of a deportation hearing, then the parents have a choice. Leave the child(ren) behind with lawful resident family or as wards of the state, or take the children with them and the child(ren) can return legally as adults because they are citizens.

  • Smooth Like a Rhapsody||

    So what you are saying is that the entire population of Guatemala could walk across the border tomorrow, and we're stuck with them; and the hundreds of thousands of children they have while waiting for hearings are citizens?
    If that's the law, then the law is broken.

  • James Pollock||

    "If that's the law, then the law is broken."

    Some guy named Obama tried to get Congress to fix it, but the Republicans running it said "nah, we like it the way it is" and didn't even convene to discuss his request.

    "So what you are saying is that the entire population of Guatemala could walk across the border tomorrow, and we're stuck with them"

    We don't have a border with Guatamala, so if these Guatamalans are walking across borders, its someone else's problem.

  • James Pollock||

    CONT'D

    The main problem is that the number of people who can hear deportation hearings is capped by law. So even if you schedule as many hearings a day as these guys can hear, there's a fixed total number of hearings you can hold. That number turns out to be a little over 400,000 per year. If you had 400,000 people coming over the border every year, you could give each one a deportation hearing and send them home... but then you would never get to the several million illegal immigrants who are already here. As I said before, they prioritize some people's hearings... recent arrivals, felons, repeaters... and so people who aren't any of those category sit and wait. It would be ridiculously expensive to house them all, and clothe them and feed them, so most of them are left where they are, feeding, clothing, and housing themselves at their own expense.

    Want more people deported? Complain to CONGRESS, which is who set the cap on hearings officers and refuses to increase it. The President is already running as many people through the system as he can, and this is true no matter which President you're talking about, back to Reagan, who signed an amnesty offer to try to clear the backlog.

  • Brett Bellmore||

    The basic problem here is that a majority in Congress wanted, and possibly still want, massive illegal immigration. The members on the 'right' had to lie about it, of course, but they've been very careful not to hand the President any tools he might be able to use to effectively enforce these laws they'd have repealed if doing so were politically survivable.

  • James Pollock||

    "The basic problem here is that a majority in Congress wanted, and possibly still want, massive illegal immigration."

    No. The problem is that a majority of Congress declines to deal with the problem, kicking the can down the road.

    Problem #1: Running the immigration system is expensive. Ramping up enforcement by increasing the number of hearings officers would cut into the backlog, and they'd have an easy time, at first, finding illegals to run through the system. But it would take time, effort, and money... a lot of money... to train and house the number of hearings officers needed in the short term.

    Problem #2: Chasing the supply when there remains a demand is a losing game. Ask anyone involved in the war on drugs. Billions and billions spent, and any 15-year-old in America with $20 can get their hands on illegal drugs by the end of the day. As long as there is a demand, people will find a way to supply it.

  • James Pollock||

    CONT'D

    So, there IS a solution to problem #2.
    It's this. Instead of requiring people to fill out paperwork for cash transactions of $10,000, require paperwork for cash transactions of $20. With all that cash now traceable through paperwork and the Big Data capabilities of systems developed by NSA, it quickly becomes possible to find who is paying illegals to work. You get the drug dealers, too, as a free bonus.

    Of course, pretty much everyone agrees that the cure is worse than the disease, because it is. So, having declined the cure, the time to stop whining about the original problem is now.

  • Sarcastr0||

    Smooth, firstly this is about law, not policy. That you jump to policy is rather quitting the field.

    But to take your policy argument, you're creating a sort of heckler's veto - Republicans do something morally reprehensible, and if Democrats don't cave (by screwing the 14th) they're the real villains.

    You are both smarter and more moral than that. Was this just a little Halloween trolling?

  • Smooth Like a Rhapsody||

    No, it's about law.
    Trump got elected because, for decades, the political class, when faced with two choices: enforce the law or amend it, chose to temporize and shift the costs of their inaction to the localities and the lower classes.
    I'm simply asking liberals of good will to choose sides. Because it sure as hell looks like you want the status quo, which is, in my view, a position that holds the concept of government by laws in contempt.

  • MatthewSlyfield||

    There's an article floating around out there, by a person who claims to be a law professor. The topic/conclusion of that article is that the "rule of law" or as you put it "government by laws" is a myth.

    This article seems to be fairly well argued and supported.

    The basic premise is that laws must by necessity be interpreted and enforced by people and it would be completely impossible to make the language of laws precise enough to foreclose any argument over what they mean.

    I don't care to actually look this article up right now.

  • Sarcastr0||

    You're not asking for good will at all. You seem to think you're setting a trap but this is like AltRightIdiot-level reasoning.

    As practiced, there is a lot of discretion in enforcing the law. Additionally, the 'cost of inaction' is a completely separate issue from what the law is, and is very debatable - you are assuming that question, and it isn't even a relevant one!

    And saying that because I think birthright citizenship is good, therefore I must love the immigration policy status quo is an amazingly tendentious argument.

    These are very bad arguments.
    Is this going to be like Millennial Lawyer who came onto the scene thoughtful, but then devolved into a lame reflexive partisan who imputes bad faith to all liberals? (most of the time - ML sometimes teases with his old intellectual heft)

  • Smooth Like a Rhapsody||

    Lots of words.
    Where's the response?
    What should be the government's response to the caravan be? Is US law as it is currently written enforceable, given the resources at hand? Should the US have the open borders that Somin, and some others advocate?
    "Amazingly tendentious", or not, you failed to even attempt to answer (or even reformulate) the question.

  • Smooth Like a Rhapsody||

    Lots of words.
    Where's the response?
    What should be the government's response to the caravan be? Is US law as it is currently written enforceable, given the resources at hand? Should the US have the open borders that Somin, and some others advocate?
    "Amazingly tendentious", or not, you failed to even attempt to answer (or even reformulate) the question.

  • Smooth Like a Rhapsody||

    Lots of words.
    Where's the response?
    What should be the government's response to the caravan be? Is US law as it is currently written enforceable, given the resources at hand? Should the US have the open borders that Somin, and some others advocate?
    "Amazingly tendentious", or not, you failed to even attempt to answer (or even reformulate) the question.

  • Sarcastr0||

    As I posted, It's a bullshit question that is ignorant of how the law operates - it's not a 'enforcement or open borders' dichotomy, and I know you know that.

    Furthermore, the caravan is not against the law, nor is there any sign it's planning to break our laws.

    I'm simply asking liberals of good will to choose sides.
    I resent that implication. Fuck you.

  • Jerry B.||

    Wonder how Liberals who want to protect birthright citizenship by saying "but it's in the Constitution" will weasel out when folks who want to protect gun rights say, "but it's in the Constitution".

    I'm sure they'll come up with a way.

  • James Pollock||

    "Wonder how Liberals who want to protect birthright citizenship by saying "but it's in the Constitution" will weasel out when folks who want to protect gun rights say, "but it's in the Constitution"."

    A good many of the people who want to protect gun rights act as if the second amendment begins where that comma is, and then continues to the end. But it doesn't. It has that stuff before the comma, too.

    (Note: I support the freedom of people who handle their firearms safely and responsibly to have whatever firearm(s) they want. Not because of the 2A, which I read as guaranteeing the ability to serve in the militia, but on general principles of freedom.)

  • Brett Bellmore||

    Oh, come on, not this again. Well regulated militia, and a right of the "people", not the militia. I've got no problem with the preface at all.

    In fact, I'm extensively read on the founding era documents on the topic, and your interpretation was expressly rejected, because if the right was restricted to militia members, it could be extinguished by the simple expedient of not having a militia.

    They wanted to protect the militia system from the government itself, remember. By guaranteeing an individual right to be armed and train, they made sure a militia could be constituted in an emergency even if the government didn't want it to be possible.

    Never forget that a Bill of Rights is not based on the idea that the government wants to do the right thing. You have a bill of rights on the assumption that the government will sometimes want to do the wrong thing, and must be stopped. And rights listed in a bill of rights must always be interpreted in that light.

  • James Pollock||

    "I've got no problem with the preface at all."

    Good for you. Then (obviously) when I wrote that many people do, it didn't require a response from you because it isn't talking about you.

    "your interpretation was expressly rejected"
    Except it wasn't, because the words are there, in the text they ratified.

    "if the right was restricted to militia members, it could be extinguished by the simple expedient of not having a militia"

    The Founders attempted to prevent the creation of a standing army. They thought a militia was preferable (as do I). The Founders also didn't think we needed a Bill of Rights, and wrote the Constitution without one.

    "They wanted to protect the militia system from the government itself"

    And that's why they gave the federal government the authority to take control of the various militias, I presume?
    I think they wanted to make sure that one state didn't severely limit it's citizenry's armaments and then have to be bailed out by a neighbor-state's militia coming to its aid.

  • TheAmazingEmu||

    I think both are in the Constitution. I think the Second Amendment is poorly written for political reasons but the effect of what's written is clear. I recognize that puts me in the minority among liberals (although I suspect many liberals think the right to bare arms is a personal right as well, the dispute is far more focused on how far that right extends). Likewise, I think the majority of conservatives recognize birthright citizenship regardless of whether they agree with it for political reasons.

  • loveconstitution1789||

    Man, Pollock, Kirkland, and Sarcastro are insufferable trolls over here.

  • James Pollock||

    srsly?

  • Brett Bellmore||

    Nobody is as insufferable as Kirkland. Relax, you're quite sufferable.

  • James Pollock||

    My objection was to his oversight in not listing his own account amongst the trolls.

  • Sarcastr0||

    Love ya too, Brett!

  • Naaman Brown||

    Given an expectant foreign couple vacationing in the US. Due to miscalculation or emergency, the mother delivers in the US. What if the parents want their offspring to be a citizen of their homeland and not a citizen of the US? Are they screwed?

  • James Pollock||

    "What if the parents want their offspring to be a citizen of their homeland and not a citizen of the US?"

    Whether or not the child is a citizen of their homeland is up to that country and its laws. Generally speaking, the child will be a citizen of that country, too.

    As for US citizenship, the child can renounce upon gaining majority. I don't think the parents can do it.

    As for hypotheticals, I have WAY more fun with them. Here's mine. the USSR sends "deep cover" sleeper agents to the United States. They have children, who are born here and are raised as Americans. Then, 1989 happens and the USSR no longer exists. Are THOSE kids US citizens? (Hint: yes).

  • ||

    And has to pay $2,500 (plus back taxes) for the "privilege" of renouncing citizenship. Some UK politician got burned by this recently.

  • wreckinball||

    Just declare a national emergency and close the border. Forget about this issue. Offer to help Mexico deport them back to their home countries. Until then close the border.

    We hold all of the cards here.

  • Mannix||

    Here are some selected quotes in response to Ho at the time his article appeared:

    >>Ho never addresses what the primary framers declared the words to mean but instead singles out a minor discussion between Senators Cowan and Conness over concerns of whether "race" of the parents would play a role in citizenship before the primary authors, Senators Trumbull and Howard discussed the legal effect of the words. By ignoring the legal effect of the words "subject to the jurisdiction thereof" Ho had no difficulty in asserting a "foreign national living in the United States is 'subject to the jurisdiction thereof' because he is legally required to obey U.S. law." In other words, Ho like many argue "subject to the jurisdiction thereof" requires only obedience to U.S. laws by merely setting foot within some State of the union.>Many States adopted laws similar to New York and the District of Columbia that singled out children born to "transient aliens" along with children to public ministers and consuls after the Fourteenth Amendment had been adopted. If the nation believed the Fourteenth Amendment was merely a repetition of the English common law rule of birthright then singling out children of transient aliens would easily been seen as running afoul with the Fourteenth Amendment.

  • M.L.||

    Since Eugene included mention of the exchange between Cowan and Conness, I will paste the following from the Eastman/Chavez debate linked above:

    Chavez also misunderstands the exchange between the racist Senator Edgar Cowan of Pennsylvania, and Senator John Conness of California. Cowan asked, as Chavez rightly points out, whether the Citizenship Clause would provide automatic citizenship to the children of Chinese and Gypsy immigrants residing in California and Pennsylvania, respectively, expecting that his question would derail the amendment. But she overlooks a crucial piece of Conness's response, for he began with a statement that he failed to see the relevance of Cowan's question to the Citizenship Clause. Cowan, you see, was not asking a question about illegal immigrants or others who retained an allegiance to a foreign power; he was making a racist assertion that, effectively, only white Europeans should be allowed to be citizens. Conness rightly rejected that contention. Our citizenship rule was to apply to anyone who was lawfully and permanently in the United States, but his response does not in any way suggest—because Cowan's question did not present the issue—that temporary sojourners, who still owed allegiance to a foreign power, could unilaterally bestow U.S. citizenship on their offspring.

    cont'd

  • M.L.||

    cont'd

    Indeed, the final part of Cowan's question itself recognized the distinction I am drawing: ""Have [the children of Chinese or Gypsies] any more rights than a sojourner in the United States?" Conness's answer was a definite "yes." Both have "more rights than a sojourner in the United States." Anyone completely subject to the jurisdiction of the United States, no matter what their ethnic background or nation of origin, is entitled to the benefits of the Citizenship Clause. Temporary visitors, on the other hand—sojourners who are here legally and certainly those who are here illegally—are not.
  • David Nieporent||

    Both have "more rights than a sojourner in the United States." Anyone completely subject to the jurisdiction of the United States, no matter what their ethnic background or nation of origin, is entitled to the benefits of the Citizenship Clause. Temporary visitors, on the other hand—sojourners who are here legally and certainly those who are here illegally—are not.

    Of course temporary visitors -- sojourners -- are not entitled to the benefits of the citizenship clause. We're not talking about them. We're talking about their children.

    People seem to have a hard time grasping the distinction between parents and children.

    Children of Chinese and Gypsies are citizens, so they have more rights than sojourners do. We all agree on that. But that is not remotely the same thing as saying that the children of Chinese and Gypsies have more rights than the children of sojourners do.

  • M.L.||

    You seem to have a hard time grasping that the drafters of the 14A pretty clearly understood, indeed they thought it was obvious, that anyone who "owed allegiance" to a foreign sovereign -- which would include the children of sojourners -- was not included in the definition of "subject to the jurisdiction." But potentially, those who were "domiciled" in the US were presumed to have renounced such foreign allegiance, instead submitting with mutual consent to the jurisdiction of the U.S.

  • David Nieporent||

    To quote a recent philosophical treatise: "Amazing. Every word of what you just said was wrong."

  • M.L.||

    How so? Have you read the legislative history? Do you know what the 1866 Civil Rights Act said?

  • James Pollock||

    "You seem to have a hard time grasping that the drafters of the 14A pretty clearly understood"

    You seem to have no trouble grasping at straws.
    The 14A is written in English. Those English words have meanings, and the combination selected and ratified for the 14th amendment do not exclude people in the country temporarily, whether legally or not.

    Foreign diplomats are not subject to the jurisdiction of the United States because of specific treaties negotiated with the foreign powers whom they represent. Under those treaties, diplomats can be expelled at will, but that is the only punishment that the United States can render upon them, and the decision to do so is not a judicial one, it is an executive power. If a diplomat comes here as a tourist and shoplifts a polished rock from the giftshop at Yellowstone, he CAN be prosecuted and jailed by the local courts, and the fact that he is a diplomat does not matter because tourists are subject to the jurisdiction of the United States (and subdivisions). It's not the fact that they owe allegiance to a foreign power that makes them not subject to the jurisdiction of the United States, it's the fact that they represent a foreign power than makes them not subject to the jurisdiction.

  • James_Herms||

    Mr. Volokh:
    Is the phrase "subject to the jurisdiction thereof" an adjective phrase (like "born . . . in the United States")¹ or an adverbial phrase (like "in the United States")²?
    ¹ "All persons . . . subject to the jurisdiction thereof[] are citizens . . . ."
    ² "All persons born . . . subject to the jurisdiction thereof[] are citizens . . . ."

  • ReaderY||

    Ok, so here goes.

    The Constitution gives Congress the power to repel invasions. Congress has in turn delegated this power to the President by statute.

    Propose The President, by Executive Order, declares immigrants or a particular group of them invaders and orders them repelled. Maybe after some troops are sent to the border, some rocks or thrown, and some shooting starts. Or maybe not.

    At any rate, if the executive order is valid, then invaders are a classic example of a group not subject to the United States' jurisdiction. So if the invaders had children, it follows that their children would not become citizens.

    Voila.

    The troops, the rhetoric, etc. would appear consistent with this legal stratagem being prepared for deployment.

  • Sarcastr0||

    By similar logic, the real executive masterstroke would be to declare them all bananas, because then they'll have a'peel.

  • James Pollock||

    "At any rate, if the executive order is valid, then invaders are a classic example of a group not subject to the United States' jurisdiction."

    Your premise is flawed. Invaders are subject to the jurisdiction of the United States. 317 US 1 (1942).

    You're also hypothesizing some fairly significant infringements on due process of law. The lawsuits would be many, and while the lawsuits are pending, the parties to them will be allowed to stay in the U.S., and any children they have here during that time will be unambiguously subject to U.S. jurisdiction.

  • James_Herms||

    "armed conflict. _Int'l law._ 1. A state of open hostility . . . between a country and an aggressive force."
    The US gives such invaders due process under _international_ law (or perhaps military law too?). They have no federal civil rights here, nor any access to the civil court system here. They do have access to their own court system, and they have the undeniable right to file those "many lawsuits" there.

  • James_Herms||

    The Amendment "affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign . . . ministers, . . . or of enemies within and during a hostile occupation of part of our territory . . . ."
    Wong Kim Ark (1898).
    "resident alien. An alien who has a legally established domicile in the United States." Black's Law Dictionary, 10th ed.

  • ReaderY||

    But Quirin left the question open. The Roosevelt administration raised this issue. ("it [the government] also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of [317 U.S. 1, 25] persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing.")

    The Supreme Court ruled that because it decided the merits in favor of the government. it needn't decide the question.

    "As announced in our per curiam opinion we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue. We pass at once to the consideration of the basis of the Commission's authority."

    I think a more fundamental problem with the applicability of Quirin is that it and its progeny address only a situation where an enemy combatant is held prisoner on US soil not subject to invasion or combat. Such an individual has standing (Hamdi confirmed this) to challenge their enemy combatant status.

  • ReaderY||

    But Quirin left the question open. The Roosevelt administration raised this issue. ("it [the government] also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of [317 U.S. 1, 25] persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing.")

    The Supreme Court ruled that because it decided the merits in favor of the government. it needn't decide the question.

    "As announced in our per curiam opinion we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue. We pass at once to the consideration of the basis of the Commission's authority."

  • ReaderY||

    A more fundamental problem is that Quirin and its progeny were habeas corpus cases. Habeas corpus requrs imprisonment If an enemy combattant is imprisoned on US soil, habeas corpus may still permit challenging the imprisonment

    But the individuals involved here would be at large -- they wouldn't be prisoners. They would be having children while roaming at large.

    So the Trump administration is free to argue that even if the habeas corpus cases establish that upon capture, a enemy combatant prisoner on US soil has a right to challenge their imprisonment and hence has become subject to the jurisdiction of US courts, this just doesn't apply to non-prisoners.

    I would like you to be able to find a hole in this argument that's established by settled law. But I think it's a genuine open question, and even if the courts say things are different now. The Trump administration has more of a serious argument than the Conspirators would acknowledge.

  • ReaderY||

    (cont)

    A more fundamental problem is that Quirin and its progeny were habeas corpus cases. Habeas corpus requrs imprisonment If an enemy combattant is imprisoned on US soil, habeas corpus may still permit challenging the imprisonment

    But the individuals involved here would be at large -- they wouldn't be prisoners. They would be having children while roaming at large.

    So the Trump administration is free to argue that even if the habeas corpus cases establish that upon capture, a enemy combatant prisoner on US soil has a right to challenge their imprisonment and hence has become subject to the jurisdiction of US courts, this just doesn't apply to non-prisoners.

    I would like you to be able to find a hole in this argument that's established by settled law. But I think it's a genuine open question, and even if the courts say things are different now. The Trump administration has more of a serious argument than the Conspirators would acknowledge.

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