Walker (and others) join Trump, calling for ending birthright citizenship

[SteveRogers]

Wow, conservatives sure do respect the constitution. You know, except for the parts that don't further their political agenda.

[SteveRogers]

Ok, apparently Trump's position is even crazier than imagined. On O'Reilly he argued that people who are currently deemed to be citizens but are children of 'illegals' are not actually citizens, and so they will have their citizenship revoked and be deported. O'Reilly pointed out that there is this pesky 14th Amendment but Trump said that his lawyers say that wont be a problem. Trump dismissed the notion of a constitutional amendment and said he preferred to just go ahead and de-citizen the people and deport them.

Trump also scoffed at the notion that the mass deportations of millions would require due process or tie up the courts. Seriously. I think Reince Preibus may just shoot himself if this goes on much longer.

Watch it...
http://www.mediaite.com/tv/trump-to-oreilly-the-14th-amendment-wont-hold-up-in-court/

Well these are the same lawyers who thought spousal rape didn't exist, so I'm not shocked that they haven't read any of the constitution.

[SteveRogers]

Ok, apparently Trump's position is even crazier than imagined. On O'Reilly he argued that people who are currently deemed to be citizens but are children of 'illegals' are not actually citizens, and so they will have their citizenship revoked and be deported. O'Reilly pointed out that there is this pesky 14th Amendment but Trump said that his lawyers say that wont be a problem. Trump dismissed the notion of a constitutional amendment and said he preferred to just go ahead and de-citizen the people and deport them.

Trump also scoffed at the notion that the mass deportations of millions would require due process or tie up the courts. Seriously. I think Reince Preibus may just shoot himself if this goes on much longer.

Watch it...
http://www.mediaite.com/tv/trump-to-oreilly-the-14th-amendment-wont-hold-up-in-court/

That is not what Trump argues.  He argued that illegal aliens are not subject to the jurisdiction of the United States, and that their children were therefore not US citizens, under the 14th Amendment. Since they are not citizens, their citizenship would not be revoked.

O'Reilly argued, "I am loud and have my own TV show, therefore the courts will interpret the 14th Amendment as my superficial reading of the Constitution would have it."

But illegal immigrants are obviously subject to the jurisdiction of the United States, so loud TV host is obviously right and Trump doesn't have a leg to stand on for the reasons that ag states.

Plus, even if Trump's interpretation of the 14th amendment were plausible, federal law indepently establishes  that children born on U.S. soil are U.S. citizens, so yes Trump's plan would in fact still entail revoking existing citizenship. (Yes, the statute mirrors the language of the constitutional provision, but when every federal agency has always understood that as granting you citizenship, guess what, you're a citizen and that can't be taken away without due process).

[SteveRogers]

That is not what Trump argues.  He argued that illegal aliens are not subject to the jurisdiction of the United States, and that their children were therefore not US citizens, under the 14th Amendment. Since they are not citizens, their citizenship would not be revoked.

O'Reilly argued, "I am loud and have my own TV show, therefore the courts will interpret the 14th Amendment as my superficial reading of the Constitution would have it."

But illegal immigrants are obviously subject to the jurisdiction of the United States, so loud TV host is obviously right and Trump doesn't have a leg to stand on for the reasons that ag states.

Plus, even if Trump's interpretation of the 14th amendment were plausible, federal law indepently establishes  that children born on U.S. soil are U.S. citizens, so yes Trump's plan would in fact still entail revoking existing citizenship. (Yes, the statute mirrors the language of the constitutional provision, but when every federal agency has always understood that as granting you citizenship, guess what, you're a citizen and that can't be taken away without due process).

I'm not going to search the entire US Code to prove that there is no such provision.  Cite the code section.

8 U.S.C. § 1401- Nationals and Citizens of United States at Birth

You must be logged in to read this quote.

[SteveRogers]

But illegal immigrants are obviously subject to the jurisdiction of the United States, so loud TV host is obviously right and Trump doesn't have a leg to stand on for the reasons that ag states.

Plus, even if Trump's interpretation of the 14th amendment were plausible, federal law indepently establishes  that children born on U.S. soil are U.S. citizens, so yes Trump's plan would in fact still entail revoking existing citizenship. (Yes, the statute mirrors the language of the constitutional provision, but when every federal agency has always understood that as granting you citizenship, guess what, you're a citizen and that can't be taken away without due process).

I'm not going to search the entire US Code to prove that there is no such provision.  Cite the code section.

8 U.S.C. § 1401- Nationals and Citizens of United States at Birth
"The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;"

Why is subsection (b) necessary?

Because Native American tribes have a unique and peculiar relationship with the United States government, and as the second clause of (b) makes clear, special clarifications are needed for children who at birth simultaneously become citizens of both the United States and an Indian reservation that is itself a sovereign nation.

[SteveRogers]

8 U.S.C. § 1401- Nationals and Citizens of United States at Birth
"The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;"

Why is subsection (b) necessary?

Because Native American tribes have a unique and peculiar relationship with the United States government, and as the second clause of (b) makes clear, special clarifications are needed for children who at birth simultaneously become citizens of both the United States and an Indian reservation that is itself a sovereign nation.

Why couldn't Congress add a new section (b) and renumber the remaining sections:

"(b) a person born in the United States to two permanent resident aliens who have resided in the United States for five years."

Because the Constitution and and subsection (a) already say that you don't need to have resided here for five years. You just need to be in the United States and subject to its jurisdiction.

Does common law make an exception for Indians?

I honestly have no idea. Indian tribes are dependent sovereigns within the United States. It's a weird situation, and my guess was that it probably wasn't covered very well by common law.

Why did the Civil Rights Act of 1866 use different language than the 14th Amendment, if the intent of the 14th Amendment was to lock in the Civil Rights Act of 1866.

I don't know enough about the specifics there, but probably because although similar in goals, one was a law while the other is a constitutional amendment designed to stand the test of time, and they both go through different processes before enactment, and constitutional amendments require a 2/3 majority in congress. Not sure what that has to do with this topic.

[SteveRogers]

Why did the Civil Rights Act of 1866 use different language than the 14th Amendment, if the intent of the 14th Amendment was to lock in the Civil Rights Act of 1866.

I don't know enough about the specifics there, but probably because although similar in goals, one was a law while the other is a constitutional amendment designed to stand the test of time, and they both go through different processes before enactment, and constitutional amendments require a 2/3 majority in congress. Not sure what that has to do with this topic.

The Civil Rights Act of 1866 was passed 2 months before the 14th Amendment.  It says:

"That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; ..."

Persons born to foreign citizens are themselves foreign citizens, and therefore subject to the foreign power.  In writing the 14th Amendment should we assume a deliberate change in language, or that "subject to the jurisdiction" means the same as "not subject to any foreign power".

Yes, that would appear to be a deliberate change in language. Constitutional provisions are generally going to be written in broader terms than statutes. The Civil Rights Act of 1866 goes on to use quite different language than the rest of the 14th amendment. The Supreme Court in U.S. v. Wong Kim Ark actually addressed the change in language from the Civil Rights Act to the amendment and concluded that the provisions probably intended the same thing, but not in the way that supports your argument:

You must be logged in to read this quote.

The Supreme Court in Wong Kim Ark already addressed basically all of the arguments that you're raising. I recommend that you and everyone else actually go read that opinion before returning to this  thread. There the court held that a child born on U.S. soil to two Chinese citizen parents legally domiciled in the U.S. acquired citizenship at birth under the 14th Amendment. Now, many of the posters here as well as the rightwing blogs have been saying that this case doesn't quite reach the question of children born to illegal immigrants, but that misses the point. If the 14th amendment meant what you say it means, then it wouldn't matter whether Wong Kim Ark's parents were legal or illegal immigrants because they would still be subjects of China either way.

Why couldn't Congress add a new section (b) and renumber the remaining sections:

"(b) a person born in the United States to two permanent resident aliens who have resided in the United States for five years."

Because the Constitution and and subsection (a) already say that you don't need to have resided here for five years. You just need to be in the United States and subject to its jurisdiction.

"subject to its jurisdiction" is not defined.

It is up to Congress to define it, just as they decided that Indian's were not subject to its jurisdiction.

No, it is ultimately up to the Supreme Court to interpret the Constitution, and it has. Congress didn't "decide" later after the passage of the 14th Amendment that children of members of Indian tribes were not subject to the jurisdiction of the U.S. There is a whole section in Wong Kim Ark where the court discusses the reasons why Indian tribes are treated differently than other foreign nations for these purposes. The ultimately recognized Indian tribes as the third and final exception to birthright citizenship under the 14th Amendment:

You must be logged in to read this quote.

[SteveRogers]

You perhaps did not actually read the entire decision, or you would have quoted:

You must be logged in to read this quote.

Illegal aliens are not resident aliens, since they have absolutely no right to residency within the United States, unless you are going to take the extreme interpretation of the 14th Amendment, that once they have a foot in the United States they have a right to establish domicile just like any other person.

They are equivalent to those born on a foreign ship, they may be within the territorial limits of the United States, but they are not domiciled here. An illegal alien has no allegiance to the United States.

I agree that illegal aliens are not resident aliens and have no right to residency. That doesn't change the fact that they do in fact reside in the United States and are thus domicled here. When federal, state, and local laws are applied to illegal immigrants for purposes such as taxation or civil suits, their residence here in the U.S. will be considered their domicile, not their home back in Mexico. The law doesn't pretend that they don't live within the United States. And you're not using the term "allegiance" as it is meant in the context of Common Law relating to citizenship. 

[SteveRogers]

You perhaps did not actually read the entire decision, or you would have quoted:

You must be logged in to read this quote.

Illegal aliens are not resident aliens, since they have absolutely no right to residency within the United States, unless you are going to take the extreme interpretation of the 14th Amendment, that once they have a foot in the United States they have a right to establish domicile just like any other person.

They are equivalent to those born on a foreign ship, they may be within the territorial limits of the United States, but they are not domiciled here. An illegal alien has no allegiance to the United States.

I agree that illegal aliens are not resident aliens and have no right to residency. That doesn't change the fact that they do in fact reside in the United States and are thus domicled here. When federal, state, and local laws are applied to illegal immigrants for purposes such as taxation or civil suits, their residence here in the U.S. will be considered their domicile, not their home back in Mexico. The law doesn't pretend that they don't live within the United States. And you're not using the term "allegiance" as it is meant in the context of Common Law relating to citizenship. 

You are confusing the words residence and domicile. A person may have multiple residences, but only one domicile, the place they intend to permanently reside.

Consider an alien who is in the country on a temporary visa, whether as a tourist, a short-term work permit, or as a student. None of these persons can claim a location within the United States as their domicile, as their place of permanent abode.

The SCOTUS in Wong Kim Ark made a particular emphasis of the facts in that case, that his parents had been legally domiciled in this country and conducted business for decades, and that Wong Kim Ark himself had lived in the United States all his life. It can not be an accident that in their conclusion that they emphasized domicile.

A permanent resident alien can establish domicile in the United States, because we have given him legal permission to do so.

I know the difference between residence and domicile, and I'll even concede that an illegal immigrant may not be be considered domiciled in the United States for certain legal purposes. Even so, I don't think that changes the result here. Yes, the facts of the case in Wong Kim Ark were that the parents were legal residents domiciled in the United States. But the court clearly articulates a much broader rule than you are giving them credit for, and domicile is not a requirement in that rule. The court very clearly delineates three exceptions to the rule of birthright citizenship. You want to argue that the Supreme Court should carve out a fourth exception for illegal immigrants, which is fine, but you need to make that argument. It does not flow from the rule the court articulated in Wong Kim Ark.

"subject to the jurisdiction" means that they owe allegiance, at least temporarily, and are under the protection of the United States.

Can you explain what you think "allegiance" means? You seem to be trying to equate it with "permission to be here," which isn't how the Supreme Court or British Common Law used the term.

[SteveRogers]

Why did SCOTUS spend so much time articulating three exceptions to birthright citizenship that had nothing to do with the facts of Wong Kim Ark?

[SteveRogers]

You're saying that someone who sneaks across the border from Windsor to Detroit to deliver because they would have to wait another 9 months under Ocanadacare, is like the case of someone who has lived and worked for decades in California, since the parents are not diplomats, members of an Indian tribe, or part of an invading army.

Yes, the outcome for the baby is the same. (Also, gestation takes twice as long in Canada )

Is there a distinction to be made between: (1) someone who crosses the border while in labor; (2) someone who crosses the border legally a month before their due date; (3) someone who is 3-months pregnant who flies to "visit their cousin" and later delivers in the USA; (4) someone who is pregnant, but unaware of that fact who visits their cousin and later delivers in the USA; (5) someone who visits their cousin, and engages in certain activities that cause her to become pregnant and delivers in the USA; (6) someone who enters the country illegally, "to work", and during the course of their illegal presence in the USA becomes pregnant and delivers in the USA?

No, there is not a distinction between the babies that would be born as a result of those hypotheticals. We don't hold children responsible for the sins of their parents, so the subjective intent inside the minds of a newborn baby's parents, criminal or otherwise, should not affect that baby's legal status at birth.