Posted on 10/30/2018 2:48:25 AM PDT by be-baw
President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for "Axios on HBO," a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.
Why it matters: This would be the most dramatic move yet in Trump's hardline immigration campaign, this time targeting "anchor babies" and "chain migration." And it will set off another stand-off with the courts, as Trump’s power to do this through executive action is debatable to say the least.
Trump told Axios that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.
"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said, declaring he can do it by executive order. When told says that's very much in dispute, Trump replied: "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order."
"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits," Trump continued. "It's ridiculous. It's ridiculous. And it has to end." "It's in the process. It'll happen ... with an executive order."
The president expressed surprise that Axios knew about his secret plan: "I didn't think anybody knew that but me. I thought I was the only one. "
Behind the scenes:
Swan had been working for weeks on a story on Trump’s plans for birthright citizenship, based on conversations with several sources, including one close to the White House Counsel’s office. The story wasn’t ready for prime time, but Swan figured he'd spring the question on Trump in the interview.
The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:
"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."
Be smart: Few immigration and constitutional scholars believe it is within the president's power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.
But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas. John Eastman, a constitutional scholar and director of Chapman University's Center for Constitutional Jurisprudence, told Axios that the Constitution has been misapplied over the past 40 or so years. He says the line "subject to the jurisdiction thereof" originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.
Michael Anton, a former national security official in the Trump administration, recently took up this argument in the Washington Post.
Anton said that Trump could, via executive order, "specify to federal agencies that the children of noncitizens are not citizens" simply because they were born on U.S. soil. (It’s not yet clear whether Trump will take this maximalist argument, though his previous rhetoric suggests there’s a good chance.) But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be "unconstitutional."
Between the lines: Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants, Eastman said.
Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call "anchor babies" — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.
The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.
The bottom line: If Trump follows through on the executive order, "the courts would have to weigh in in a way they haven't," Eastman said.
The full interview will air on "Axios on HBO" this Sunday, Nov. 4, at 6:30 p.m. ET/PT.
It may take 20 years but I hope to live long enough to see obamy’s lies exposed.
POTUS has already started that DACA and all its consequences will be weighed on a case by case basis. Expect SCOTUS to rule for Texas but for POTUS to sift through DACA and allow exceptions.
The Wall, the expected battles over the 14th A, and the resultant effects such as education for illegals will reform the past decades of border abuses organized and funded by enemies of the United States.
Read the Senate debate on that clause. Other members of Congress who voted for the 14th Amendment believed that it did grant citizenship to the children of non-citizen immigrants.
This simply shows why originalist judges, like the late Antonin Scalia, do not care about “legislative intent” when interpreting a statute or the Constitution. Legislatures are made up of several members voting for different things for different reasons. They don’t have an “intent.” Originalists look to the “original public meaning” of the language. Unfortunately, with respect to the 14th Amendment’s citizenship clause, the meaning was in dispute even among the members of Congress who voted to propose it.
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.
As we know, the real the problem is the misinterpretation about the meaning of "and subject to the jurisdiction thereof."
"Jurisdiction thereof" is more than meaning that persons living in the territory of a country obeying their lawful statutes in the context of 14th Amendment, the true understanding of its meaning and intent is allegiance to country of citizenship from where they come from.
Using Mexico, as an example, that the statement I wrote above is completely true, is that Mexico grants Mexican citizenship through jus sanguinis to newborn offspring for their citizens living abroad. As we see, Mexico still claims jurisdictional allegiance [thereof] over their citizens and their newborn children who are living elsewhere.
People have purposely misread the first sentence of Article XIV Section 1, as it says,
"All person 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."
To believe the Media and the Left the first sentence of the 14th Amend. would have been written this way:
"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."
"subject to the jurisdiction thereof" would be a redundant clause. The former clause inherently tells us they are already subjected to the laws of the United States. Then why be redundant in form? You would not be.
The word "And" means a required conditional. So therefore, the true purpose of the later clause informs us about owing allegiance concerning their citizenship to their distinct sovereign states, and in this case owing allegiance to the United States.
For more proof about the meaning and intent of the 14th Amendment is look at the law passed previously by Congress, in the first sentence, that covers the same subject. It's completely understandable that cannot be easily obfuscated, but less elegant of a statement. The reason they turned this same law, which became basis of the 14th Amendment, so it would not be easily overturned by a future Congress.
PING
Check out #385.
Thanks, Red Steel.
“subject to the jurisdiction thereof” and “natural born citizen” are both cravats bringing attention to an important meaning.
“It seems that Teddy Kennedy enacted something in ‘65 that started this whole anchor baby thing. It’s doubtful, or indeed unlikely that an EO can reverse an act of Congress signed into”
The immigration and naturalization act didn’t give citizenship to children born to illegal aliens.
I know people here are having a hard time wrapping their heads around the fact that our fed govt is completely lawless and corrupt. The demoncrat controlled stasi state[administrative state-the swamp] is/was granting citizenship to children of illegal aliens by fiat. The wave of a wand. No law-no court case. They just did it because they wanted new demoncrat voters.
Trump CAN do it by E.O. If the courts step in, he should ignore them. After 28 years of bushes, clintons and o’muslims, the courts are completely corrupt. Something needs to be done about these lawless judges, too. Unfortunately, America doesn’t have the time to cycle out all of these commies on the bench.
“Not according to USSC Wong Kim Ark ~1895.”
SCROTUS can’t change the constitution through a ruling, they can’t make law from the bench and they can’t make anyone a citizen(congress has the sole power of naturalization)
It should have been ignored.
From rxsid's most excellent post:
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase (All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside):
[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
Sen. W. Williams:
I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.
I smell a sleeper after birther troll. Ozone.
and they can’t make anyone a citizen(congress has the sole power of naturalization)
You should read the decision first....
Wong was found to be a “born” citizen by application of the 14th Amendment of the Constitution.+-Naturalization played no part in the ruling. The court acted within it’s role of applying the Constitution to a specific case. You cannot ignore thgis ruling and still proclaim yourself a Constitution loving “Conservative.”
That said, children born in the US to Illegal aliens or tempory visitors are NOT US citizens. There is NO ruling or lar in the US that makes them so. This controversy of the past 40+ years is just another F—k up of the late great (sic) Sen. Teddy Kennedy.....seems everything he touched was/is messed up!
The 14th Amendment was/is clear. The author of the citizenship clause of the 14th was painfully clear.
SCROTUS pulled that decision out of their ass. IOW, they perverted the Constitution. Now re-read my previous post.
;)
“You cannot ignore thgis ruling and still proclaim yourself a Constitution loving “Conservative.””
You have that completely ASS-BACKWARD. Those that think the courts are the final arbiter of the constitution are no conservative in my book. If the courts are the final arbiter, then we live in a judicial tyranny. Which is our sad reality.
:)
I hope it gets done. I hope it gets done so conclusively that it can’t get undone. I was listening to a FOX panel that included a judge saying that birthright is enshrined in the 14th Amendment, “subject to the jurisdiction thereof” be damned. It ought to be done once and for all. To end the back-and-forth, it should be an amendment to the Constitution. But in the interim, by all means let’s have an EO and while they’re suing to block the EO, let’s have an act of Congress. And while all that’s cooking, have a constitutional convention and state ratification of an amendment, and finally present it to both houses of Congress. And as long as there’s a constitutional convention, propose a bunch of other amendments as well, each presented separately so as not to have a complicated package with something in it that everyone will object to.
Those that think the courts are the final arbiter of the constitution are no conservative in my book>
________________________________________
Read my post...The courts job is to APPLY the law to specific cases. You assume that I favor the court making up the law to fit the desired outcome of the case. NOT so!
What Conservative opposes the court APPLYING the law as written to the case at hand???? Reading comprehension is your friend!
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.
The left will go batshit, and the 9th will slap an injunction on him before the ink is dry. But, this is something that needs to be clarified.
“Done the proper way, this is a good thing.”
This is one of the reasons why the left wing went ballistic to prevent Brett Kavanaugh from being a Supreme. The legal world in America changed when Brett Kavanaugh became our new Supreme Court justice.
The lefties can no longer rule/change/create laws from a liberal Supreme Court or via a lower court.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.