Posted on 10/30/2018 8:17:41 AM PDT by reaganaut1
On substance, I believe President Trump is right on birthright citizenship — the 14th Amendment does not require it. I do not believe, however, that the president may change the interpretation of the 14th Amendment, which has been in effect for decades, by executive order, as he is reportedly contemplating.
My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.
I won’t rehash the arguments on both sides. With due respect to our friend Dan McLaughlin (see here), I think Professor Eastman has the better of the argument. As I have observed before, and as we editorialized when Donald Trump was a candidate (here), this is a very charged issue, and it is entirely foreseeable that the Supreme Court (to say nothing of the lower federal courts teeming with Obama appointees) would construe the term jurisdiction differently from what it meant when the 14th Amendment was ratified.
For today, the more narrow question is: Assuming arguendo that the 14th Amendment does not require birthright citizenship, is our practice of conferring it merely an executive policy that the president has the power to change by executive order?
(Excerpt) Read more at nationalreview.com ...
Well, if he can’t change it, why are you so upset?
He’s getting this foul birthright citizenship problem out in the public sphere. A lot of people are ignorant about this.
I agree with you 100%
Ultimately courts will decide this matter. This is just throwing the gauntlet out.
Oh, get over yourself. The 14th amendment never had anything to do with granting the children of illegal invaders citizenship. This is not wrong, it is a very appropriate use of President Trump’s executive order powers. This is a good way to get the issue fast tracked to the Supreme Court.
By what means should a President use to force the Justice Department to enforce a law the way it was written?
Trump is not proposing changing the law but implementing what the law actually means. The present "birthright" citizenship is contrary to both the Constitution and statutory law.
Is he really changing the law, or is he endeavoring to end the practice of allowing anchor babies.....
There is no law granting citizenship to the children of illegal aliens. So technically, Trump isn’t changing the law, he is just interpreting the Constitution. Of course I expect it to be challenged up to the SC. At least it may goad Congress into doing something.
There is no law for birthright citizenship so why pass a law to get rid of a law that’s not there.
BINGO! That is exactly why he’s doing it.
“Birthright citizenship” was created out of thin air, why not just stop it with a wave of his wand.
There was no law passed that said “Thou shalt give birth certificates and citizenship to an illegal alien”
They just started doing it.
There is no law for anchor babies to begin with.
No, Trump is going follow and enforce the law. The real law.
He doesn’t need permission from the courts or congress. They can go fark themselves. McCarthy and NRO can go fark themselves, too.
I'd imagine the order will say something to the effect that "the executive finds that illegal aliens on U.S. soil do not fit the definition of 'subject to the jurisdiction thereof' found in the 14th Amendment, therefore the administration will not recognize people born under this situation as US Citizens."
This would not be changing the law by decree, it would be staking out a position on the correct interpretation of a Constitutional issue that has never been considered by SCOTUS. I'd say it is completely legitimate, and not at all comparable to what Obama did with DACA.
Exactly. If the view of the 14th Amendment is as the open borders and their apologists say it is, there would have been no legal reason for the Immigration and Naturalization Act of 1965.
If the Fed Courts stop him they’ll reap the whirlwind from enraged voters. Eventually we’ll get a Congress that WILL pull the reins in on them.
This is a no-lose proposition for Trump.
“Trump is not proposing changing the law but implementing what the law actually means. The present “birthright” citizenship is contrary to both the Constitution and statutory law.”
This ^^^
Congress cannot pass a law restricting birthright citizenship. It will require the Supreme Court to rule on the meaning of “under the jurisdiction”.
Trump can issue an EO. It will almost immediately be overturned by a lower court. He can appeal, and the appeal will eventually reach the Supreme Court, which will have to determine if the children of ILLEGAL aliens are born “under the jurisdiction”.
The US Constitution gives citizenship to those born here under most circumstances. No court has ever formally ruled on if those circumstances include those born to illegal aliens. If it does, then it would require an amendment to the Constitution.
I think he’s doing it for show as a sort of changing of the vernacular just before the election. After all, how does anyone, with a straight face, argue against congress doing, via passing a bill, what he is proposing via EO?
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