This will certainly end up in front of the courts. I just think an executive order like the one I think is being contemplated by the President is the only way to get it there. No one has standing to sue to have people who are treated as citizens to be declared non-citizens. However, if the President orders the State Department to stop issuing passports to the US-born children of illegal immigrants, then those people will certainly have standing to sue over the issue.
On the substantive issue, I tend to agree that the situation of Indians is very informative. The issue was the subject of a great deal of debate before the vote to propose it, at least in the Senate, and both the Senate and Supreme Court interpreted “subject to the jurisdiction” to exclude Indians not taxed.
Two problems still arise, though: First, even the Senate did not agree among themselves what the language meant with regard to the children of immigrants. Second, the way we categorize immigrants today is different than it was in 1868—the first real immigration restriction, the Chinese Exclusion Act, wasn’t enacted until 14 years later.
I think the line somewhere in the middle. At least some non-citizens are “subject to the jurisdiction,” otherwise Congress simply could have specified that one or both parents had to be citizens. Obviously, foreign ambassadors and delegations are not “subject to the jurisdiction.”
I would think that legal permanent residents are “subject to the jurisdiction” and their US-born children are citizens, and in fact the U.S. Supreme Court held exactly that in U.S. v. Wong Kim Ark in 1898. The Court in Wong Kim Ark also said that “subject to the jurisdiction” excluded only Indians, enemy aliens in hostile occupation, and diplomats, but I think that is what we call dicta—the Court repeatedly points out and relies on the fact that Wong’s parents were domiciled in the U.S.
So, in addition to the Indians, enemy aliens, and diplomats recognized in Wong Kim Ark, I think “subject to the jurisdiction” probably also excludes illegal aliens and non-immigrant legal aliens (i.e., tourist, student, and guest-worker visas). The children of illegal immigrants, or of women who travel here from China or Nigeria just to have their children here, are not citizens, in my view. The children of green card holders are citizens.
Unfortunately, I’ll be surprised if the Supreme Court agrees.
I smell a sleeper after birther troll. Ozone.
Though I prefer legislative issues should be legislated. From a practical standpoint, you're right. There are enough Republicans in the house that would oppose legislation I doubt it would pass. And in any case it's going to end up in the judicial system. An executive order gets it there. And if we end up with thousands in tent cities awaiting deportation hearings, it's a clear case to be heard by the Supremes on an expedited basis.
I would think that legal permanent residents are “subject to the jurisdiction” and their US-born children are citizens, and in fact the U.S. Supreme Court held exactly that in U.S. v. Wong Kim Ark in 1898. The Court in Wong Kim Ark also said that “subject to the jurisdiction” excluded only Indians, enemy aliens in hostile occupation, and diplomats, but I think that is what we call dicta—the Court repeatedly points out and relies on the fact that Wong’s parents were domiciled in the U.S.
I agree. A large component of jurisdiction is a permanent presence. I believe Wong recognized that, the determinant in Wong Kim Ark's citizenship was that his parents were here legally and permantly, and only left the country on a trip, thus he was granted reentry based on his birthright citizenship. Illegals are here neither legally or permanently. Refugees aren't either, that's why they must apply for legal status.
If I'm not mistaken there was also a case which reached the Supreme Court involving five brothers in the same circumstance as Wong. Four were granted reentry after a business trip to China. The fifth, though having the same claim to citizenship, was denied citizenship and reentry due to bad or criminal conduct. Which would seem to extend the permantcy test to other factors required for legal entry.
Politically this will be a tough one for the Court, but with the current composition, it's entirely possible that previous rulings as well as the intent of the amendment could win the day. I wouldn't hold my breath though. And then there's the issue of the Executive branch impinging on Congress' legislative authority. Personally I don't think that's the case since he's instructing Justice and Homeland Security to act based on a legitimate interpretations of existing law. But it gives them an easy way out, and throws it back to Congress.