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

[jimrtex]

The practice of birthright citizenship goes back to the beginning of the country, i.e., it was implicitly enshrined by the Founding Fathers. I don't see it becoming a litmus test.

Birthright citizenship is a relic from colonial times. It has no place in modern-day America.

Your trolling has gone too far, unless you seriously intend to argue that I should not be a citizen, considering that neither of my parents had been naturalised when I was born, or consider me "foreign spawn".

If your parents were permanent residents and subsequently were naturalized while you were a minor, you would have been covered by their naturalization, the same as any (hypothetical) siblings who had been born abroad.  Or if you had reached majority, you could been have naturalized in your own right.

Had your parents departed the USA when you were three, why should you be a US citizen, but your older brother, born before your parents resided in the United States, or your younger sister, born after they had left not be US citizens?

[jimrtex]

In any case, I fail to see why opposition to granting citizenship to those who do not even have permission for residency merits such righteous indignation.

You are punishing children for their parent's perceived transgressions.  How would a newborn even get permission to be a resident in the United States?

The answer to that hypothetical question is that they don't need to.  Our constitution makes clear that if this country is your birthplace, you have a right to call it home.  Being born here is 'permission' enough, and that is how it should be.

If the parents had a visa, any minor children who had immigrated with them would be covered under the parent's visa.  The parents could add the newborn child to that coverage.

If the parents were naturalized while the children were minors, the children would be covered by the naturalization, just as happens now if the children were not born in the USA.  If the children reach majority, they could be granted a visa in their own right, and become naturalized themselves.

[jimrtex]

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."

[jimrtex]

So, has it been discussed who this would target? are current anchor babies (like me) born in 1987 grandfathered in? lol Both my parents never actually became U.S. Citizens.

Were your parents legal immigrants?

Congress may also pass naturalization laws.  The USA grants non-14th Amendment citizenship to 10s of thousands of newborns every year.

[jimrtex]

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.
"

To the best of my understanding, "not subject to US jurisdiction" means they could not be tried by the US laws in US courts.  That, in fact, has been the interpretation historically: diplomats, occupying troops, etc. By repeatedly bringing these people to court for crimes committed in the US, the US has, most clearly, asserted its jurisdiction. Of course, it would be possible to pass a law renouncing jurisdiction in the future, but how would that affect the cases of people who were, clearly, born under the US jurisdiction? Or else, what is the meaning of being "subject to jurisdiction"?

Was this the understanding at the time the Amendment was ratified?  Has it, in fact, been interpreted that way?  Court cases?

[jimrtex]

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.

[jimrtex]

Was this the understanding at the time the Amendment was ratified?  Has it, in fact, been interpreted that way?  Court cases?

https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark

The 'Wong Kim Ark' decision is based on the SCOTUS' interpretation of common law:

"Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth."

If someone is born in a hospital in El Paso, does that make the parents, "residents"?

Are illegal aliens capable of establishing residence?  If they owe a temporary allegiance to the sovereign, are they not violating that allegiance by deliberately remaining in the country.

Wong Kim Ark's parents were legally domiciled in California and conducting a lawful business at the time of his birth.

[jimrtex]

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?

[jimrtex]

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."

Does common law make an exception for Indians?  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.

[jimrtex]

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.

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".

[jimrtex]

If banning birthright citizenship occurred, I'm pretty sure Rubio and Jindal wouldn't be citizens.

Marco Rubio's parents were naturalized when he was four.  He would have been covered under his parent's naturalization.  They had also resided in the USA for 15 years when he was born.

Bobby Jindal was born 6 months after his parents came to the USA for post-graduate study at LSU. I assume they are naturalized citizens, but I don't know. If not, Jindal could have been naturalized in his own right when he became an adult.

[jimrtex]

If banning birthright citizenship occurred, I'm pretty sure Rubio and Jindal wouldn't be citizens.

Marco Rubio's parents were naturalized when he was four.  He would have been covered under his parent's naturalization.  They had also resided in the USA for 15 years when he was born.

Bobby Jindal was born 6 months after his parents came to the USA for post-graduate study at LSU. I assume they are naturalized citizens, but I don't know. If not, Jindal could have been naturalized in his own right when he became an adult.

Neither would be eligible to run for president though.

They would be a footnote like Jennifer Granholm or Arnold Schwarzenegger then.

[jimrtex]

You must be logged in to read this quote.

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.

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 has authority under Section 5 to enforce the 14th Amendment.  Enforcement of citizenship for those entitled to it may require explicit recognition of those who are not entitled to it.

The Supreme Court may review the laws passed by Congress.

[jimrtex]

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.

[jimrtex]

What's the reasonable reading of "subject to the jurisdiction" that says it doesn't apply to illegal immigrants? We've seen the other side's reading: illegal immigrants are subject to the laws of  the US when they're hear, and can be and are arrested for violating them. So what about the other side? Let's see what the argument is for what these words mean if not that.

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

In Wong Kim Ark, the SCOTUS applied the 14th Amendment to a person whose parents had been legally domiciled in the United States for decades, engaging in business. Their son had lived in the United States for decades, but left for a short period, and then was barred re-entry.

The SCOTUS emphasized these facts. There is no evidence that they meant them to apply to someone who flew in from elsewhere and gave birth in a US hospital.

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Someone who is temporarily here lawfully, such as on a tourist visa, work permit, or student visa, can not be domiciled in the United States, because they do not have our permission to have a permanent residence. They are simply passing through. Similarly, someone who is unlawfully present, whether sneaking across the border, or overstaying a visa, does not have the right to residence or domicile.

[jimrtex]

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.

There is huge gap between the facts of Wong Kim Ark and the exceptions articulated by the SCOTUS.

You are assuming that the exceptions define where the boundary is.  You are assuming that the SCOTUS specifically used the word domicile as mere wordplay and not of significance.

An ambassador is not expected to permanently reside in the United States, but rather at some point return to the country he represents. Someone on a ship isn't expected to stay in territorial waters forever. A member of an Indian tribe was expected to have allegiance to his tribe, and not the United States.

If someone who said they wanted to visit the Grand Canyon, and the USA, said fine, be sure to leave within six months, but then stayed on and never left, and then argued that they had intended all along to be domiciled in the USA, would not be covered by 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.

Allegiance is loyalty to the sovereign - in the case of United States to the Republic itself.

"I pledge allegiance ... to the Republic ..."

in return it provides,

"one nation, under God, indivisible, with liberty and justice for all."

[jimrtex]

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?

In their decision they spent considerable time emphasizing that statements made in an opinion that were not directly related to the facts of case shouldn't be considered as setting a precedent.

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.

[jimrtex]

Are we all in agreement, though, that this practice is something happening "on a huge scale"? I haven't really seen any evidence that that is true.

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?

[jimrtex]

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?

In their decision they spent considerable time emphasizing that statements made in an opinion that were not directly related to the facts of case shouldn't be considered as setting a precedent.

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.

Are you claiming that people sneak across the Canadian border to deliver a child because the Canadian health care system would make them wait an extra nine months to deliver over what the US health care system would? That makes less than no sense.

Patient: I would like to schedule delivery, eh.
Doctor: When would you like, eh.
Patient: November, eh.
Doctor: I'm booked up until April, eh.
Patient: What can I do, eh.

It would make no sense to wait in Canada.

[jimrtex]

Are we all in agreement, though, that this practice is something happening "on a huge scale"? I haven't really seen any evidence that that is true.

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?

I don't know whether you meant to ask me that question. I'm not talking about hypotheticals. It was asserted that this was something happening on a huge scale, and I haven't seen evidence presented to convince me that's the case.

You asked about "this practice". I was clarifying what you meant about this practice.

[jimrtex]

Anchor Babies on Trial in Texas

Texas is being sued because it won't issue birth certificates for children whose parents can not prove their identity with a document such as a US-issued visa.

[jimrtex]

Anchor Babies on Trial in Texas

Texas is being sued because it won't issue birth certificates for children whose parents can not prove their identity with a document such as a US-issued visa.

The children whose mothers came to the US for the explicit purpose of giving birth to US citizen children are not involved. They do have visas - and tonnes of money for lawyers if anything goes wrong.

Of course, as I understand, <drivel snipped>?

You do not understand.

Even if the birth tourists are issued birth certificates, their offspring are not US citizens/

[jimrtex]

Because you hold the sole power to interpret the constitution and everybody else for the last 150 years has been wrong?

Congress has the authority to enforce the 14th Amendment. That it has not acted, likely indicates incompetence. Just because someone is orange does not make them superior.

[jimrtex]

Because you hold the sole power to interpret the constitution and everybody else for the last 150 years has been wrong?

Do you know how to use the quote option?

[jimrtex]

The children whose mothers came to the US for the explicit purpose of giving birth to US citizen children are not involved. They do have visas - and tonnes of money for lawyers if anything goes wrong.

Even if the birth tourists are issued birth certificates, their offspring are not US citizens.

"Birth tourists", almost without exception, are rich people with valid visas.

Even if the "birth tourists" are issued birth certificates, their offspring are not US citizens.

Would you prefer some other appellation?