Posted on 01/22/2025 3:09:35 PM PST by george76
In the giddy hangover of our tumultuous celebration of American liberation, let’s chat about some of the legal aspects of what’s happening and what’s going to happen because there are a lot of bad legal takes out there (follow the essential Twitter account of the same name), and you don’t want to be repeating the same kind of nonsense that other people do. Let’s be clear about something. I’m not telling you what I think the law should be. I’m telling you how the law actually is. And then I’ll give my opinion, which might be wrong.
Of course, my caveat requires a caveat in an environment where it’s less about precedent than about filling in legal Mad Libs. There are a lot of bad judges out there who either don’t know what the law is or simply don’t care and rule solely by their corrupt communist ideology. What these disgraces say has nothing to do with what the law actually is. They just cloud the issue with their nonsense. Of course, a great example of that is the ridiculous idea that some judges in Colorado could take Donald Trump off the ballot because they decided he was an insurrectionist because of reasons and Orange Man Bad. It took the Supreme Court about five seconds to unanimously dispense with this idiocy, but you see the problem. Like Trump’s bogus conviction in New York for a crime that didn’t exist, a ridiculous ruling persists until the process gets around to punting it through the goalposts of legal oblivion.
Let’s talk about pardons for a second. There’s lots of talk about pardons out there, and a lot of it’s crazy talk. A lot of it is just wrong. The president has the absolute power to pardon federal crimes, but only federal crimes. He can’t pardon state crimes. For federal crimes, it’s an unlimited power. This means that there are no limitations on how a president exercises it. People keep trying to create limitations that don’t exist. “Oh, you can’t pardon a crime that hasn’t been charged.” Of course you can. It’s an unlimited power. It’s not limited to pardoning crimes that have been charged. And that is how it’s been used in practice as well. Ford pardoned Nixon even though he wasn’t charged with any crimes. Carter pardoned the draft dodgers even though they hadn’t been charged with any crimes. A president can pardon for bad reasons, like to protect his scumbag family and scumbag political allies like Liz Cheney. Again, the Constitution doesn’t limit the power to just using it for good reasons or for any reason at all.
Nor is receiving a pardon an admission of a crime. Yes, I know there’s a Supreme Court case out there with some dicta that people have been twisting that way. “Dicta” is a legal term for something a court says in an opinion that does not relate to the resolution of the issue at hand, and dicta is not precedent. It just hints at what the judges might rule if that specific issue ever actually comes before them. Hundred-year-old dicta is worth approximately nothing.
Anyway, the case people were talking about concerned someone effectively rejecting a pardon. Apparently, you can do that. Now, the Constitution says nothing about rejecting a pardon, so why does that concept exist? Because if you accept pardon, it affects your rights. How does it affect your rights? It eliminates your right to decline to answer questions under the Fifth Amendment because, by definition, you can’t incriminate yourself if you’ve been pardoned. So, by accepting a pardon, you give up the protection of the Fifth Amendment regarding statements about the subject of the pardon. The Constitution does not allow someone to take away your rights without your permission or due process. Accordingly, you can reject a pardon.
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Now, does a pardon necessarily mean that you have admitted guilt of the underlying crime? No, though, people say that all the time. Pardons can be protective. You can protect people from injustice, which is what Joe Biden said he was doing, even though we all know he wasn’t doing that when he pardoned the persecutors and traitors. But pardoning people protectively is a real thing, and it’s a good thing. We should be happy about it. That’s an important power for the president, one that the J6 persecutions have shown is vital. As much as the losers and creeps Joe Biden pardoned are losers and creeps, their acceptance of a pardon is not an admission of guilt as a matter of law. As a matter of reality, in this case, it kind of is. But law and reality are different things. And there’s a lot of talk about how this sets a bad precedent, but I’m glad that President Trump will be able to leave office and protect the people who the Democrats will unfairly persecute should they regain power.
This part is my opinion – I don’t think we should do anything to change the pardon power. At some point, we must rely on the honor and dignity of the people who hold offices, and in the case of people like Joe Biden, their abuse of the pardon power is an important indicator of just how scuzzy they are.
Donald Trump purported to end birthright citizenship under the 14th Amendment by executive order on Day One of Trump 47. There probably would’ve been a bigger meltdown if there hadn’t been about 45 other meltdowns going on simultaneously. In any case, the people who did comment on it were largely huffy because they considered the issue settled. The issue was not settled. There is a non-frivolous argument that the 14th Amendment does not provide for the citizenship of anyone born within the confines of the United States, except a relatively few people like children of foreign diplomats. That’s how the law has been interpreted until this executive order. There are tens of millions of Americans who were born here and have American citizenship right now, even though their parents were here illegally. So, we have both existing precedent and facts on the ground – people who are American citizens Through this process – to contend with.
The issue has to do with who is here in America, subject to American laws, and whether that means illegal aliens, too. I’m not going to jump into that debate because I simply don’t have the space, but if you’re interested, you can go hunt down the arguments both ways. But there are arguments for and against birthright citizenship. Don’t listen to people who tell you that there is no argument against the current application of the 14th Amendment. There is an argument. And that argument is going to be made. I’m not sure whether Donald Trump’s going to direct the federal government to deny citizenship to children of illegal aliens, thereby spawning the litigation, or whether opponents will file litigation preemptively. But it is going to go up through the courts and it is going to be heard, and it is going to be analyzed. That’s how things should work. You make arguments, and then judges consider them in the context of precedent and rule accordingly.
Here’s my opinion. Although I haven’t seen the counterargument fully briefed in legal filings, so my opinion is flexible, I tend to think that the current application of the 14th Amendment creating birthright citizenship is probably correct. I don’t have to like that. That’s just my legal analysis, and I can be convinced otherwise and maybe I will be once I see the issue fully briefed. I do see huge practical problems with applying it. How does this affect people who currently have citizenship but would not have it under the new interpretation of the 14th Amendment? Do we apply the new interpretation from now on, or do we reach back and strip them of citizenship? I think denaturalizing current citizens would be unjust, and I am about as anti-illegal alien as you can get without wanting to hunt them for sport.
In any case, we’ll find out. That’s why we have a justice system, and I’d like to see it used to create justice instead of being used against just us.
What does it mean to be subject to the jurisdiction of the United States? This issue is explained by legal scholar Hans Spakovsky who notes that advocates of granting birthright citizenship to anyone born in the United States
erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.
But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
The courts themselves have historically recognized this distinction, noting that the whole purpose of the Fourteenth Amendment was to grant citizenship to former slaves who obviously were not connected to any other country or sovereign. In the Slaughter-House Cases, 83 U.S. 36 (1872), the court ruled:
That [the Fourteenth Amendment’s] main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
This was further confirmed by the Court in 1884 (in Elk v. Wilkins, 112 U.S. 94) when the Court stated that the idea of birthright citizenship did not apply to Native American tribes which were nonetheless within the borders of the United States:
“[The Fourteenth Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”
In short, the court recognized that the tribal lands were within the legal jurisdiction of the United States, but this did not mean that everyone born within those borders was automatically granted citizenship. Those tribal members believed to be subjects of “foreign” tribal governments were therefore not “subject to the jurisdiction” of the United States in a way that conferred automatic citizenship.
Congress further reinforced the court’s interpretation by adopting new legislation granting citizenship to all tribal members in 1924. Had the Fourteenth Amendment really granted automatic citizenship to everyone born within the borders of the United States, no such legislation would have been necessary.
More at: https://www.zerohedge.com/markets/birthright-citizenship-isnt-real
You can't win if you don't play.
Trump understands a lesson the Bushite GOP never was willing to learn. Sometimes in politics you fight a battle knowing your are probably going to lose to show your voter base you take their concerns seriously. You also fight the battle to provoke a debate and more public opinion towards your viewpoint.
Not fighting a political battle because you afraid to lose, is an automatic loss, something the GOP-E still does not understand.
Winning the midterms is crucial. Keep the base energized.
Part of that is going to be willing to primary our trash. Past time this clown show McCain/Romney BS where they use the party to get elected and then go “maverick” to suck up to the DC Media start to come with a steep political penalty.
Let’s tackle the fact Obama wasn’t a legal US president. There is no legit documentation he was even born in The U.S. or any of it territories! Yet he was still sitting in the white house for 8 Friggin years! Biden was declared I co.petwnt to stand trial, yet they let him stay as a sitting president and sign pardons??
I don’t agree with Kurt. He’s too deep into the weeds.
KS doesn’t seem to get that the EO doesn’t eliminate Birhright Citizenship.
It simply clarifies who is eligible for it under the 14th Amendment.
Barry Soetoro’s parental father was born of Kenya. When Barry was 3 years old, his parents divorced.
Afterward, his mother, Stanley Ann Dunham, married her second husband Lolo Soetoro, a citizen of Indonesia. Evidence shows that Barry Soetoro was adopted by his stepfather in Indonesia. Barack Obama lived and studied there for 5 years from 1967 until 1971.
Barry Soetoro” and his religion was Islam. Barry’s stepfather signed a government document legally “acknowledging” Barack as his son or adopted son, either which changed his citizenship status to a “natural citizen” of Indonesia.
https://elizabeththepunisherdove.substack.com/p/the-punisher-files-who-is-barry-soetoro
Excellent legal perspective, providing context.
Thanks for posting!
That is the rub in most Supreme Court cases. Truth is a phrase means whatever the court says it means, no matter how stupid their conclusion is. Congress can fix this by passing laws that are not subject to review, no matter what resident legal eagles here say. They love to tie the courts hands by endlessly quoting precedent as if it were blackletter law.
Totally ban “birth tourism” and this problem ends.
From a previous thread:
Original intent of the 14th Amendment
Senator Jacob Howard (served on the Senate Joint Committee on Reconstruction, which drafted the 14th) clearly spelled out the intent of the 14th Amendment by stating:
“Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
Any SCOTUS decision and corresponding opinion interpreting the 14th Amendment to mean that children born in the United States to two non-citizen “progenitor” parents both here illegally, or at least only temporarily, will inevitably be utterly nonsensical from an original meaning perspective.
I think a lot of what is going on is people pushing for what they believe would be the best policy, then trying to fit the Constitution to that. I wish illegals didn't get birthright citizenship either, but there is no objective basis in the Constitution to draw that distinction.
for me it has been obvious for more that 10 years that ‘in the US’ and ‘under the jurisdiction of the US’ are two separate things. otherwise why call them out separately.
this guy’s legal position that they are the same makes zero sense to me.
As others have said, this depends upon the meaning of “subject to the jurisdiction of”.
The Constitution does not define this. As far as I know it’s not defined in statute.
It seems to be common knowledge that a binding SCOTUS precedent defines it as simply being born in the country. This may be true, but I’d hesitate to assume that. “Common knowledge” is often wrong.
If there is a definition in statute, where is it?
If there is a SCOTUS precedent, where is it?
If there’s neither, is it simply an administrative ruling based on a presumed understanding of the SCOTUS precedent?
Everybody seems to be yelling about this without reference to the precise statutes and judicial decisions that would control.
Which means nobody is actually addressing the real issues.
I agree - even if the SCOTUS doesn’t agree with his determination, he gave the people what they want.
Personally, I think the MAGA wing of Congress should propose an Amendment to clarify who the 14th Amendment applies to as it relates to citizenship. Sure, it will likely fail, but we will quickly see who needs a primary and who needs to be voted out.
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