Posted on 02/02/2025 6:37:37 AM PST by george76
This week, the Trump administration doubled down in its fight against birthright citizenship. The usual alliance of pundits, professors and press lined up to declare any challenge to birthright citizenship as absurd. Yet the administration seemed not only undeterred, but delighted.
There is a reason for that euphoria: They believe that they cannot lose this fight.
The legal case against birthright citizenship has always been tough to make, given the long-standing interpretation of the Fourteenth Amendment in federal courts and agencies. Many in academia and the media have shown unusual outrage toward anyone questioning the basis for birthright citizenship as a legal or policy matter.
This is perhaps best evinced by Harvard Law Professor Laurence Tribe’s profane tirade the last time Trump raised this issue years ago: “This f—ing racist wants to reverse the outcome of the Civil War.”
Putting aside that the Civil War was fought over slavery, not immigration, many at the time would have disagreed that this was one of the outcomes of either the Civil War or the Fourteenth Amendment.
The Fourteenth Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” However, sandwiched between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed many since they were first drafted.
For some, the line must be read as a whole and guarantees that anyone born within the United States becomes an American citizen. For others, the six words cannot be read out of the amendment as superfluous. They argue that this indicates that the parents must be here in a legal status, either as citizens or legal residents.
This division was evident at the very birth of the amendment. Some of those debating the question clearly believed that the amendment did cover anyone born on our soil regardless of the status of the parents. During the debates, Senator Edgar Cowan of Pennsylvania asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” Senator John Conness of California answered this in the affirmative.
Others indicated the opposite understanding. Senator Jacob Howard, coauthor of the Fourteenth Amendment, said it was “simply declaratory” of the Civil Rights Act to protect freed slaves.
Howard assured senators, “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.” Likewise, Senator Lyman Trumbull, author of the 13th Amendment and the Civil Rights Act and a drafter of the Fourteenth Amendment, said that the six words included only those “not owing allegiance to anyone else.”
This debate has raged for decades. While Democrats today portray anyone supporting the narrower interpretation as a racist or nutty, it was not long ago that many Democratic leaders opposed birthright citizenship, including former Senate Majority Leader Harry Reid (D-Nev.). He later denounced his old position with the same passion.
The Supreme Court itself seemed conflicted in the relatively few cases that touched on this issue. In 1872, in the Slaughterhouse Cases, the court interpreted the words “subject to its jurisdiction” as “intended to exclude from its operation” children of “citizens or subjects of foreign states born within the United States.” A few years later, in Minor v. Happersett, the court unanimously expressed “doubts” that citizenship would apply for “children born within the jurisdiction without reference to the citizenship of their parents.”
Then, in 1884, the Supreme Court handed down Elk v. Wilkins and held that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power” To claim citizenship, they must owe the U.S. “direct and immediate allegiance.”
Supporters of birthright citizenship can cite countervailing authority to support their position. In 1898, the court ruled in U.S. v. Wong Kim Ark that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”
Anti-birthright advocates stress the court’s additional emphasis that the parents had to have “a permanent domicil[e] and residence in the United States, and [be] there carrying on business.”
Yet in 1982, in Plyler v. Doe, the court voted 5-4 that the Fourteenth Amendment required Texas to provide public schooling to the children of illegal immigrants, noting that there is “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
There are strong arguments in favor of the broader interpretation to include birthright citizenship, and the case law favors the conventional interpretation. Indeed, it is not clear whether the Trump administration could secure a majority of the court to adopt the narrower interpretation, including potentially skeptical conservatives such as John Roberts, Brett Kavanaugh and Amy Coney Barrett.
What is clear is that such an interpretation would likely need to be made by the Supreme Court (rather than lower courts) given the existing precedent in favor of birthright citizenship.
So what makes this a win-win proposition for the Trump administration? The politics are stronger than the precedent.
Even if the administration loses before the Supreme Court, it will force Democrats again to fight against a tougher stance on immigration issues. Democrats maintained that position in the last election despite polling showing that 83 percent of Americans support deportations of immigrants with violent criminal records and almost half support mass deportation of all undocumented persons.
On birthright citizenship, roughly half of the country now opposes it, according to a recent Emerson poll. That is consistent with much of the world. The U.S. is actually in the minority on the issue.
Our closest allies in Europe reject birthright citizens and follow the common practice of “jus sanguinis,” or right of blood. We are part of a smaller number of countries following “jus soli,” or right of soil.
That is why the Trump administration may win either way. It will either secure a new interpretation from the high court or it could spur a campaign for a constitutional amendment. All of this could unfold around the time of the midterm elections, when incumbents of the president’s party are generally disfavored. This is a wedge issue that many in the Republican Party might welcome.
Indeed, the most relevant quote from the Civil War period may be that of Gen. Ulysses S. Grant in the final year of the war, when he declared “I propose to fight it out on this line if it takes all summer.” It was a war of attrition, and Grant liked the odds. Some conservatives seem to have the same view of the lay of the land in the fight over birthright citizenship.
BTTT
I think the Trump admin is hoping this will go to SCOTUS - but with Coney-Barrett, Kavanaugh and Roberts, it may not be the win the Trump admin thinks it will be.
United States v. Wong Kim Ark (page 45):
“The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
https://tile.loc.gov/storage-services/service/ll/usrep/usrep169/usrep169649/usrep169649.pdf
I’ve wanted this fight for more than 50 years. It’s way past time.
I'm glad I don't know what it's like to be that stupid.
Invaders who commit crimes should be removed. This is something Team Trump has legal authority to do.
The non-thug invaders should be financially squeezed by all means we can think of, hopefully right out of the USA”
1. no welfare, except Medicaid/Kidscare, for persons under age 2....
I think everyone knows this will go to SCOTUS, hopefully fairly soon. If SCOTUS allows anchor babies to continue, a Constitutional Amendment will have to be tried.
Marking.
Tribe and his tribe aren’t stupid. Like Upchuck Schumer he’s conniving.
“Resident aliens” precludes illegal aliens and temporary aliens, such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa.
I’m in too much of a rush right now to research it, but I heard that the 14th amendment was essentially a restatement of a civil rights law passed a year or so before, and the exclusion in it was a little wider in not allowing anyone with loyalty to another country. It would be interesting to see the legislative history of it and the discussions while writing the amendment.
I read that. No, not merely the paragraph, but the pathetic, EXTREMELY presuming arguments which rationalize birth citizenship while ignoring one aspect little discussed except from the position of Conservatives opposed to it:
Birth tourism.
Perhaps stating the obvious, IMHO:
The fundamental defect in all the ‘logic’ is that an infant confers the benefits of our government upon the parents.
That is a bold-faced lie born - ahem - of progressive emotional ‘logic’.
Logically, the benefits of citizenship for the infant do not apply until the child is of age - 18 - and, for all legal intents & purposes, is conferred dual citizenship at most, no different than a baby born to American parents while overseas who - in most, if not all, countries - possesses ONLY the benefit of citizenship of its parents.
The British Crown obviously viewed its isolation as an island country as an advantage which negated any need whatsoever for discussion of the problem posed by ‘birth tourism...’
...a problem they, too, grapple with to this day as they continue to be assaulted by illegal migration mostly from islamic countries.
Any SCOTUS argument in favor of birth citizenship to aliens which ignores the prima facie evidence posed by the negative effects of such upon UK et al is defective on its face.
But it is a die which has been rolled by DJT and one which we badly have needed to roll for decades.
This website elaborates upon the health benefits to children - and parents - of said US citizens
and this outlines the vast number of resources available to aliens, notwithstanding non-government sources
https://pifcoalition.org/checklist
And to those who would argue that there are mechanisms in place to check & balance abuse of provisions of the web of bureaucracy involved in alien benefits: I argue that you have never been privy to the resources available to said aliens to both navigate and negate such protections against abuse.
I have.
The amount of money each hardworking American family pays to facilitate this invasion is an insult to our core values.
I have argued for years that obamacare was not merely a socialized medicine push, but part of policy objectives by said enemies of the state who sought to normalize importation of foreigners to the US for the purpose of dilution of the Republic, pursuant to the goals of globalists.
Demonstratively, the repeated violations of US sovereignty under the aegis of both the obama & biden administrations highlight the danger of diluting the US population with foreigners who owe no allegiance whatsoever.
Ironically, a recent video by Selena Gomez further highlights the dangers posed even by multigenerational children born in the US of ‘migrants’.
“My people.”
Pshaw.
“No ex post facto law…”
Ex post facto laws are laws that retroactively change the legal consequences of actions that were committed before the law was enacted, often criminalizing actions that were previously legal or increasing penalties for past offenses. In the United States, both federal and state governments are prohibited from enacting such laws under the Constitution.
Doesn’t that mean that those already born here, who have been considered citizens are protected should a change be made?
Sure, but then they can’t bring up the slavery card ever again.
This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.”
Real quote is:
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.”
https://babel.hathitrust.org/cgi/pt?id=osu.32437011560386&seq=125
There is a way to fight these citizenship claims. Allow the claimant to assert the right to citizenship upon reaching the age of maturity (18 or 21). Until then, the claimant isn’t a citizen and can be deported.
As John Jay, the first Chief Justice of the Supreme Court, pointed out to G. Washington, then presiding over the first Constitutional Convention (and I am paraphrasing here), “We are no longer subjects, but citizens, consenting to be governed.” Like naturalized Citizens, Citizens at birth must establish their allegiance to the Constitution and to the laws of the state in which they reside. The only way they can do that is by being the offspring of Citizens. Or in the words of Senator John Bingham, one of the framers of the 14th Amendment, “I assert that every person born within the limits of the Republic, or under its flag at sea, of parents who were not subjects of any other sovereignty, are, in the very words of the Constitution, natural born citizens.”
p
I agree. But let’s remember, these were manual notes taken down as correctly as possible at the time, but mistakes were possible.
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