I wonder how many other commenters are native-born citizens who wouldn’t be so if these rules had been in effect at the time of birth. I am. Also, I really think birthright citizenship is one of the most fundamental components of America’s exceptional greatness and am not willing to cede an inch on it. In short, fuck these people.
Ironically, wouldn’t this make naturalized citizens *more* secure in our US citizenship status compared with natural born Americans? I don’t have to rely on my birth certificate or try to prove that my parents were citizens or whatever. I can show you my naturalization certificate! I attended a ceremony and took an oath and everything!
Yes, but in the future, people who were born in and only knew life in the US would feel less secure in their citizenship than someone who naturalized at age 40. That seems screwed up.
The goal of the administration is preventing “anchor babies,” but their proposal seems to go too far. Some countries in Europe have a form of birthright citizenship that kicks in if you have more than a certain number of years of residency before age 18.
I lost my passport for a bit and it made me think about how my physical birth certificate, a piece of paper from more than a quarter-century ago, was the only straightforward way I had to prove I’m even allowed to be here.
My parents both eventually became citizens, but I am not sure they had permanent residency when I was born. In the case of my brother, they certainly didn’t.
I think it is absurd that I might have had to become naturalized under the administration’s order. I know no other country and never spoke anything but English with complete fluency. I would have been a foreigner in any other land.
Great! We should make folks like you citizens. But the citizens of the United States should decide who gets citizenship, not illegal aliens who violate our laws.
I'm a citizen of the United States, and I think we should decide that you shouldn't get citizenship. Maybe I can get a majority of my fellow citizens to agree with me.
You are talking about denaturalizing a citizen. This is in response to my point which is that the United States should act like most of the world’s countries and determine what non-citizens are granted citizenship.
In response to J Wong. It is an absurdity that the citizens who ratified the 14th amendment thought that people who came here in violation of our laws could get citizenship for their kids. It was a noble effort to guarantee citizenship to former slaves and their progeny.
I'm not denaturalizing anything. You might think you're a citizen, but that's only because your interpretation of the Constitution and the law have always been wrong. The fact that the US government also thought you were a citizen is immaterial. We the actual citizens of the US decide whether you are or were ever a citizen, and we say you aren't and never were.
Those are sophisms. Your illogical arguments, followed to their logical end, would result in no law. If I thought you believed them, I would accuse you of being an anarchist.
"It is an absurdity that the citizens who ratified the 14th amendment thought that people who came here in violation of our laws could get citizenship for their kids."
ITYM "the children of people who came here in violation of our laws could get citizenship for themselves". It's a subtle but important difference (ethically, not legally).
Usha Vance’s parents immigrated to the US only a few years before she was born and may not yet have had permanent residency. Chances are, she would not have been an automatic citizen under this policy
"Some birth certificates would prove citizenship, and others wouldn’t ..."
Really important point that gets at how profoundly destabilizing this would be - and the ripple effects would call into question the citizenship of a LOT of Americans. Because if birthright citizenship didn't mean what we historically thought it meant, now you have to prove that your parents, and their parents, and THEIR parents, etc. had sufficient legal status for citizenship to be conferred by your birth in America. It ends up being a difficult problem of turtles all the way down ...
So in my own case - I'm the third generation in America on my dad's side. I have a birth certificate, but does that count? Well, only if my parents are both provably citizens or lawful residents under this new standard. And that's only true if THEIR parents are also provably citizens or lawful residents. And now that starts getting tricky - my dad's parents were both from immigrant families, who came to America in the early 1900s from what is now Lithuania and Ukraine but were at the time part of the Russian Empire. Would I be able to find enough documentation from this period to verify that they were citizens, and therefore my dad is, and therefore I am? It would be pretty hard!
I don't think it's an exaggeration to say that the Trump Administration would create a massive legal grey area here that would give them an opening to denaturalize a LOT of people who thought their citizenship was rock solid. And if you think "oh they'd never do something so extreme" I will just say that my citizenship depending on Trump and Stephen Miller showing prudent restraint and forbearance is not an ideal situation....
If the Trump Administration wins this case they will have what amounts to a legal precedent for Vance's view that "heritage Americans" count more. Some citizens are more equal than others, if you will ...
As someone whose ancestors got here before JD Vance’s (1763) and won a DAR essay contest as a youth, I would like to express the utter contempt I have for this notion.
Just for reference, I'm getting it from his 2024 RNC acceptance speech:
"Honey, I come with $120,000 worth of law school debt, and a cemetery plot on a mountainside in Eastern Kentucky." After the laughs, he continues: “Now in that cemetery, there are people who were born around the time of the Civil War. And if, as I hope, my wife and I are eventually laid to rest there, and our kids follow us, there will be seven generations just in that small mountain cemetery plot in Eastern Kentucky."
I just realized that if my kids and I are buried in the parish cemetery where I grew up, it would also be seven generations buried there. But my kids and I view ourselves as the descendants of immigrants who share more in common with people crossing the Sonora desert to freedom, not some XL-American with a greater claim than everyone who showed up a little whIle later.
He may think that, but when you grab ahold of the tail of the tiger of this sort of ugly thing, it's the tiger that decides where you end up, not you. Stoke the flames, and don't be surprised if your own kids are the ones that get burned.
I suspect he would be willing to sacrifice his children for the sake of his political project.
Extremists have a lot of political disadvantages, but one of their advantages is that they don't care about their loved ones as much as normal people do.
One thing I've realized about this current supreme court is how little they care about any reliance interest or destabilzation by overturning precedent. One day you have a right then poof, sorry not sorry, you don't.
This is precisely one of the most alarming things about our current moment. It's not an exaggeration to say that no right, no matter how fundamental or secure it may seem, is safe when institutions behave in this way.
If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized. It would be relatively easy to draw a line and say everyone born from today onwards is subject to the corrected rule. We have precedent for that. We could perhaps call it "grandfathered in".
"If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized."
That doesn't follow at all. There's a huge difference between a country that never had birthright citizenship and kept its citizenship rules consistent, and one that used to have birthright citizenship but had it change suddenly and retroactively.
It would be good if there were one international standard for this. I don’t have much of an opinion on jus soli vs jus sanguinis so long as all countries operate along the same rules, but they don’t. It’s not right for there to be stateless people.
If there was an international standard it would jus sanguinis. The issue with that approach is that you have large populations of people currently not accepted as citizens in any country. If you carried jus sanguinis forward, that would continue.
I think the 14th amendment is clear and the Trump administration is wrong. But I don't see it be "retroactive" and I'm not sure how you would make any change here and it not be "sudden."
Remember that court rulings are about interpretation of the law, not legislation. With legislation changes, one can say, "Those were the old rules; these are the new ones." With a court ruling, the implication of a change of interpretation is that the previous interpretation was incorrect and should never have been considered the law at all. Thus, a ruling in favor of Trump on birthright citizenship would imply that several people who thought they were citizens never were in the first place. That's where the retroactive aspect comes in.
Yes and no. There are plenty of times when the court has ruled that things will be a certain way going forward, but don't require retroactivity. E.g. Police were required to provide Miranda warning going forward, but all the people in prison before that ruling were not released because they hadn't gotten the warning.
Miranda is not a great example, because the purpose of an exclusionary rule is to disincentivize improper police behavior. It was too late to do that re people already in prison, because the police behavior was not improper when they were convicted.
The Trump Administration is trying to totally upend over a century of settled citizenship law by executive fiat. That's fundamentally just a massively destabilizing thing to do (and that would be true of upending long-settled citizenship law in any country with any system).
This is a common misperception I see about these sorts of highly destabilizing Trump Administration actions. People who share Trump's normative preferences want to give him the benefit of the doubt that, no matter what particular load-bearing pillar of the rule of law he is trying to smash, he will make some reasonable accomodation and things will be OK. But that doesn't address the fundamental problems that (1) smashing load-bearing pillars of the rule of law is bad on its own terms, and (2) an Administration that behaves this way can't necessarily be counted on to pursue reasonable and stabilizing accomodations.
Since those countries have always had this system, I believe the word you're looking for is "unstable" and, uh, isn't that what conservatives say about Europe?
Trump has articulated no clear limiting principle that rules out what I am describing. And I wouldn't say, in general, that he's a "limiting principles" kind of guy ...
He's even said that he is only limited by his morality (whatever that is) -- in other words, that he considers himself free to do anything he's willing to do, even if it's a huge departure from what's customary or legal.
Yes, because the Trump administration is known for its reasonableness and habit of acting in good faith. I'm sure they wouldn't claim that a victory at SCOTUS also authorizes retroactive application of the rule. (Note that the administration's position at SCOTUS, as I understand it, is that they aren't asking for a reversal of Wong Kim Ark, they are arguing that Wong Kim Ark never decided the question at all -- i.e., that there would be no constitutional bar to retroactive application of the rule if Trump chose to do that.)
Suppose the court allows this, and the EO goes into effect.. it's still an EO correct? And just like hundreds of EOs are reversed every four years, one can bounce around being a citizen and non-citizen every 4 years.
And you can imagine someone in labor while a live telecast of an EO signing plays in the background. "PUSH, NOW! or no citizenship" Heckuva way to run a Republic.
Yes, it is an EO and thus theoretically subject to being reversed, although what I suspect would happen if the current EO is allowed to stand is that, if a subsequent President tried to reverse it, SCOTUS (assuming the majority that upheld the first EO is still on the bench) would strike the new EO down as being unconstitutional due to it intruding on Congress' powers under Article I to set rules for naturalization.
Not really. If SCOTUS says the 14th Amendment doesn't grant citizenship to Group X, then a subsequent EO that purports to say Group X are citizens is, by definition, unconstitutional -- Congress has plenary power to set rules for naturalization of non-citizens (lots of case law to this effect, including SCOTUS decisions with a majority of currently sitting justices) and thus the President can't grant citizenship by EO. You would need to pass legislation naturalizing everyone meeting the old criteria (assuming you can't get SCOTUS to reverse itself) because, from a legal standpoint, those people were never citizens in the first place.
Just the assumption of bad faith and values approximately antithetical to ours. Easy things to accuse an opponent of, sure, but I can't think of a western politician in the past half century or more who has done more to justify such assumptions.
The case is not about the executive order. It is about the extent of birthright citizenship. The executive order was just a mechanism to get the issue of birthright citizenship into court. If the Court rules that the children of illegal immigrants, or people here on temporary visas, are not "subject to the jurisdiction" of the US, then none of those people are US citizens, period, unless some statute grants them citizenship.
Right - and furthermore, if there exist all these conditions under which being born in the United States doesn't make you a citizen, and all these American-born people who aren't citizens, then just having a birth certificate showing that you were born in the United States is insufficient as a basis for citizenship! Hence my comment.
Suppose Trump wins this case, and then Stephen Miller comes along and decides to denaturalize me to make an example out of someone who has critized Trump (I'm a college-educated lib so the politics would be good for him). My birth certificate wouldn't be enough, because the government could say, "OK, prove that your parents were subject to the jurisdiction of the US. Then prove that THEIR parents were too." I have a passport, but my birth certificate was a supporting document to issue that, so same problem. I'm registered to vote, but if I can't prove citizenship based on my birth certificate, now suddenly I'm facing felony voter fraud. The *possibility* that someone born in the USA might not be a citizen after all makes this incredibly messy!
We can't be sure of that. And I feel like this unwarranted assumption of stability and reasonableness is a pretty common mistake people make whenever Trump starts smashing load-bearing pillars of the rule of law.
At some level, I get it - I personally oppose almost all of Trump's issue positions, but I'm just a hated libtard, and the public broadly agrees with Trump about a lot of things - immigrants are bad, law enforcement should be highly aggressive, cities are crime-ridden hellholes, drug dealers need to be crushed, foreign aid is terrible, etc. So a lot of people are inclined to give Trump the benefit of the doubt when he starts ripping up the Constitution - nullifying the 14th Amendment to remove immigrants; proclaiming that ICE doesn't need warrants so they can bust down more doors; garrisoning troops in cities; blowing up rather than interdicting (what he claims might be) drug boats; revoking funding duly appropriated by Congress to dismantle USAID; etc. I don't doubt that all of this stuff is good politics for Trump. But people shouldn't hand-wave away the attacks on the rule of law just because they agree with Trump at the level of values. The rule of law is important on its own terms! No matter what normative goods you most prefer, having the rule of law is a long term net benefit to basically all of them.
And a world where Trump can rewrite long-settled citizenship law by fiat is one where the rule of law and the Constitution have been meaningfully weakened. We can't be sure that power exercised this way will turn out to be reasonable and constrained. When these pillars fall, a lot of things come crashing down with them ...
I agree with this. I also think we have to grapple with the fact that a non-negligible share of the population isn't merely ignorant of the benefits of the rule of law, but rather rejects (maybe just instinctively rather than intellectually, but still consciously rejects) the notion that the rule of law is good. This is what it meant to be on the far right in the 19th century, like if you were a czarist in Russia: authority should not be constrained by words on pieces of paper, but should be free to act to defeat its enemies. That impulse is part of human nature. It's been successfully suppressed in the West for a while through education. But it's still there deep in the recesses, and these days people are exposed to advocacy for it, and those who agree with it, both among elites and in the general population, may still be a minority but they aren't an insignificant minority.
I'm with you in this. There is a court order that my grandfather was born in the U.S. so I am at least 3rd generation on my father's side (4th if the 1st natural born generation is 2nd). But! How do we know that my great-grandfather didn't bribe the judge?
Basically the Trump administration is arguing that _it_ gets to decide citizenship and any pretext to deny is up to them. Courts appear to be pushing back on the pretextual arguments. I don't think they would deport everyone but 2nd class citizenship is a real possibility.
This is precisely what's at stake. And I think the creation of a de jure 2nd class citizenship is a very plausible end goal that is very consistent with the underlying logic of Trumpism.
If illegal/undocumented immigrants aren’t “subject to the jurisdiction” does that mean they can’t be tried for crimes? Generally those, such as diplomats, who aren’t granted birthright citizenship are also exempt from following American laws through diplomatic immunity.
This is the exact point I've made ever since hearing the stupid “not subject to the jurisdiction of” argument decades ago and I hope one of the justices points it out in a concurrence.
Seems like the argument is that the Supreme Court should define and interpret the phrase "subject to the jurisdiction" to mean that you aren't subject to jurisdiction for purposes of citizenship but are still subject to jurisdiction for purposes of crimes. Problem solved!
Or deported! Isn't it an exercise of jurisdiction to arrest and transport a person, on the basis that they haven't been given permission to reside in your country?
This one drives me insane because the administrations position so obviously contrary to both the legal tradition and the discussion in Congress at the time. I went back and read all the congressional debates and it’s 100% clear the intended effect was to give citizenship to what we would now call “illegals”.
At the time those opposed to the wording worried it would make citizens of “Chinese” and “gypsies”. Rather than denying that, those that voted in favor explicitly said that that was their intention. The record is so clear that people trying to obfuscate it rice me nuts.
This is from a law review quoting the drafter the of amendment:
Senator Cowan renewed his similar objections from the Civil Rights Act from a month earlier, asking: “Is the child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”He called these groups “trespassers” who had “no allegiance” to the United States government. Senator Conness of California answered Cowan, declaring that “children of all parentage whatever” born in the U.S. would be citizens under the proposed clause. The phrase “subject to U.S. jurisdiction” would mean granting citizenship for all “human beings born in the United States.”
Conness was not even sympathetic to Chinese immigration. He conceded (unnecessarily and unfairly) that Chinese migrants “all return to their own country at some time or another,” and he conceded that he shared concerns about the increase of Chinese immigration to California. Nevertheless, he confirmed that he supported broad birthright citizenship, confirming the same position he had taken on the Civil Rights Act of 1866
(Edited some formatting since I copied from a pdf)
They aren't going to make this argument in court, but if they spoke candidly to you, I think what they'd say is "Sure maybe they intended to give citizenship to what we'd now call 'illegals,' but they had no idea back then that there would be so many immigrants, and from so many different parts of the world. So therefore their original intent can't be relied on as a guide, because that intent was based on certain incorrect assumptions as to how common a problem this would be, and doesn't reveal what they would have intended if they had known what would happen. If they had known that we'd have millions of non-European immigrants here in 150 years, they would have done something totally different, and we can and should go ahead and just fix that now."
I realize that I shouldn’t necessarily expect consistency for this court but if the standard is “the founders couldn’t predict the future and so we shouldn’t take their word exactly as written” I don’t see how the 2nd amendment survives. A world where every gun was a single shot muzzle loader seems to be pretty different for our world.
Oh, for sure. That's why they won't actually make these arguments in court. I'm just saying this is the source of these advocates' moral intuition for why they're right. The 2nd amendment point doesn't strike them as inconsistent with that intuition, because they believe that surely the founders would have been fine with widespread ownership of AR-15s.
I mean the precedent, history and tradition and practical implications all point that way BUT with this Calvin ball Supreme Court, it’s hard to be certain
out of curiosity: what was your expected outcome before the presidential immunity ruling?
also out of curiousity: i asked claude what it would predict for the birth right citizenship ruling, and it said 5-4 or 6-3 to strike down the EO with low confidence.
I expected Trump to win on the presidential immunity ruling -- there was literally no way SCOTUS would ever find that a President could be criminally charged for official acts of office -- but I expect the administration to lose this simply because it would implode the federal court system and potentially start a civil war. That said, while the ruling should be 9-0, I will not be surprised to see it being 7-2 with Thomas and Alito taking the opportunity of their vote not making a difference to go full Fox News.
Thomas has some very strange views about the legacy of Black Americans who are descendants of slaves. I could see him saying the whole point birthright citizenship was to confer status on former slaves and their descendants, but is not applicable to voluntary immigrants.
1) In re the federal court system, I have no reason to think that the existing cases deal with every factual/legal permutation that can be conceived of relating to this order and SCOTUS killed off nationwide injunctions, so each affected person will need to file a separate lawsuit unless they can find a class action that covers their situation. Further, depending on the exact wording of the ruling, it would potentially open the door to lawsuits based on theories that the EO's position "has always been the law" and the decision should be given retroactive effect.
2) Literally a couple hundred thousand small children would be stripped of their citizenship immediately by a ruling affirming the facial language of the EO (which operates prospectively only), but what do you supposed the likelihood is that DHS/ICE -- the organizations whose official social media pages are spamming white nationalist propaganda about deporting 100 million(!) "illegals" (a number that presupposes almost every non-white person in the country is an illegal immigrant) -- is going to scrupulously apply the EO in that manner, let alone the possibility that the administration after winning immediately issues a new EO stating that the ruling will be applied retroactively to those born after, e.g., 1986 (the amnesty for illegal immigrants under Reagan), 1965 (the Hart-Celler immigration act that substantially increased immigration from majority non-white countries), etc., etc.?
Yes, if the Supreme Court decides it's time to call some fouls on Trump, this would be a good case to start with. Birthright citizenship is right there in the plain language of "the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that
"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," to quote the dissenting opinion of Justice Harlan in Plessy v. Ferguson. And a ruling against birthright citizenship would put these justices in the same category as the justices who voted with the majority in Plessy.
The Supreme Court granted the Trump administration's request for certiorari before judgment which meant that appellate courts never fully ruled on the case and instead it was taken directly to the Supreme Court. Both sides have pretty good reason to want the case to be decided quickly and it's plausible that there was 9-0 consensus on granting certiorari before judgement.
Unlike Roe I think overturning Wong Kim Ark is extremely unlikely. It was 6-2 decision in an era when casual brazen racism was the norm across much of society including elites, the dissent at the time was poorly argued and there is simply no good textual or originalist case for overturning it. To be honest I think the modal outcome is a 9-0 decision similar to certain free speech cases.
Only four justices have to agree to grant cert to take a case. You can imagine any number of reasons (or combinations thereof), all the way from agreeing with the administration (*maybe* at most two of them?) to wanting to definitively shut down the question altogether (three or more of them).
I'm hoping that SCOTUS took it because Roberts sees an opportunity to win a massive amount of political capital for the Court by setting up what should be an easy 9-0 rebuke to the administration.
>In a savvy bit of litigation strategy, they argued that if they couldn’t get a nationwide injunction, they should be able to represent a nationwide class.
I am a fan of the ACLU in general, but there was nothing particularly savvy about it. Trump v. CASA explicitly noted that that was an option, and it is a no-brainer for this issue; the key to a class action is that "that the questions of law or fact common to class members predominate over any questions affecting only individual members" which is obviously the case.
Whenever people are like “Trump is a moderate” it seems to be an important data point that he’s so reactionary he’s trying to overturn legal precedents from the 1800s in a reactionary direction. He’s trying to take us back not even to the 1950s but the 1800s (maybe a steampunk version of it like the one in Bioshock Infinite).
Breaking news: ICE shot and killed a man in Minneapolis. It’s on the NYT front page. There’s also an image of ICE agents holding a man down while *pepper spraying him in the face.*
From NYT reporting, a man with a gun who was licensed to open carry came near ICE agents, they attacked him, and then shot him. There's no indication so far he brandished the weapon or did anything to provoke ICE.
And like holy shit, this is like quite literally what the second amendment fetishists claim to fear from Democratic administrations. Are they gonna react?
let me try to record now some explanations ice will try to use: he had a gun, he was reaching for a gun carried by one of the agents, he was resisting arrest, he was paid to be there, something about his social media history ...
in the video they just showed on the bullwark podcast, he was on the ground, had been disarmed and was shot in the back by one of the agents. if that is authentic, then it really looks like murder.
Shut up! You're only allowed to talk about housing! Authoritarian summary executions of innocent citizens doesn't poll well for the Dems! Quick, say something about how it's morally evil to require two staircases.
Based on the press conferences I've seen from the head of the Minnesota Department of Corrections and the Maine Cumberland County Sheriff, we may be closer to that than you think.
The 14th Amendment's definition of citizenship applies ONLY to the child so the parent's nationality or citizenship status is simply irrelevant. It says "All persons born...in the United States...are citizens of the United States..." It does not say "All persons born in the United States of at least one United States citizen...is a citizen of the United States."
Some news reports claim that the man was "gunned down," but this is technically inaccurate as he was already "down" and therefore was more accurately "gunned sideways."
Sure seems like an awful lot of perfectly normal law enforcement agents being corrupted by Trumpian ideology!
“The past is never dead. It’s not even past.” We’re increasingly in the situation of refighting past battles. It’s time to start singing Battle Hymn of the Republic again.
Birthright citizenship is unusual globally and the UK got rid of it seemingly without too many issues in the 80s. Everyone gets the same birth certificate but the birth certificate doesn't entitlement you to citizenship.
Without getting into the specific issue of birthright citizenship- the real problem here is overturning 130+ years of domestic & constitutional law with the stroke of a pen. You can't run a functioning developed country where longstanding law gets overturned every 4 years. I'd be more sympathetic just on process grounds if Republicans wanted to pass this as a law through both houses of Congress
Apparently the UK has thought about point #2: if a child is stateless and resides in the UK for at least five years, they can then be granted citizenship. So it was a potential problem, but they figured out how to address it (although still seems more complicated than necessary).
Like national parks we got this one right. We don’t have stateless populations at the whim of the state here because of this in the way they do in the Middle East and Asia.
Virtually all new world countries have it. New world countries which were settled by conquerors and later immigrants with the existing populations physically destroyed are fundamentally different from old world ones that have been settled since time immemorial when it comes to this issue.
It's unusual in Old World countries, many of which were conceived of as nation-states.
It's the norm in New World countries which are immigrant countries at their core. Birthright citizenship is the law in Canada, Mexico, Brazil, Argentina, etc.
Yes exactly - I think the administration is totally legally wrong on this and I hope Scotus agrees. However the proposed system is used in various places around the world without any problems (numbers 3,4,5 on Halina's list don't make sense to me; paternity tests are not de rigueur as someone else suggested; etc). I'm a US citizen and just had a kid in the UK (my wife is not British either), but because I have permanent residency here (technically settled status, a type of indefinite leave to remain) the baby is a UK citizen. My name is on the birth certificate (the hospital couldn't care less about either of our immigration status), so I applied for a UK passport online (where the appropriate govt office checked my immigration status), all very easy and smooth. There's nothing inherently or morally or logistically wrong with such a system, although I do prefer the 'inclusive' US approach.
This is wrong. The lack of birthright citizenship is what creates stateless populations. See Jews after WW2, Kurds in Syria until last week, Palestinians in camps now, etc.
Halina wrote that the "practical implications would force a fundamental shift in how American society runs" and my main point is that she was wrong, especially her bullets 3-4-5. Most countries (Gemini says 75%) do not have birthright citizenship, and it is not a logistical problem at all. You are now focusing on her bullet 2 of statelessness, but the more natural way to avoid that is if all countries offer citizenship by descent (which is by far more common anyway). Of course sometimes there will be refugees, and some countries will disappear, and there will always be plenty of edge cases whom we should treat humanely and take seriously. But birthright citizenship is not the only way to solve that problem (indeed it doesn't really solve it for the first generation anyway).
If the court decides that the US was actually subject to napoleonic law, not common law, that would “force a fundamental shift” in the US, even though plenty of countries operate just fine under napoleonic law. Just because another system works doesn’t mean that a sudden jump to that system is easy or manageable without destroying everything.
True! I understood her (and other commenters here) to be claiming that the practical implications inherent to the alternate system -- such as supposedly two different types of birth certificates -- are what would cause a fundamental shift in how society runs, apparently unaware that it works just fine elsewhere. But perhaps they also meant the shift itself, e.g. regarding what to do retroactively (as other commenters have touched on), so I should have been more circumspect.
That being said, this wouldn't be like switching to Napoleonic law and I don't think it would cause a fundamental shift, if it were done carefully and cleanly. You'd have to grandfather a bunch of people in, and you'd probably have to turn the social security number into something more like a true national id number (which would be marked citizen or green card or whatever). Lots of people wouldn't like that (mildly including me), but I'm not seeing the fundamental change - ?
To reiterate I'm not advocating for this! I like birthright citizenship just fine, plus there is definitely some cost to changing, and anyway the constitution is pretty clear in the first place :)
The thing that seems to me like it would require a fundamental shift is that there are a lot of processes that ask for proof of citizenship and that accept US birth certificates as proof. If the 14th Amendment concept of "under the jurisdiction of the US" is overturned, then birth certificates will no longer be able to provide such proof. We would either require legislation establishing that anyone with a US birth certificate before a certain date is a citizen despite not having satisfied the citizenship qualifications in place at the time of their birth (since the court will have decided that the 14th Amendment *never* gave these people citizenship), or we would have a lot of chaos around determining citizenship for a large fraction of Americans.
Yeah, even in countries that are treating them nicely, being a permanent non-citizen kind of sucks, like here’s an explainer about Tibetans in India who can’t get citizenship even though some of their families have been there since the 50s: https://www.smalegal.in/home/the-stateless-status-of-tibetans-in-india. And India is generally welcoming to Tibetans, imagine how things are in countries that don’t like the refugee population they are hosting. If there was birthright citizenship in India eventually the non-citizen refugees would die and their kids would be Indian citizens.
Yes. Anyone born in Jordan or Lebanon would be a citizen, period. These countries don’t want birthright citizenship because they want Palestinians and Other Arabs (and historically Kurds) to be at the whim of the state and easier to oppress and force out.
I thought the argument was they wanted them to retain Palestinian citizenship, although I agree once you get been in a country for some years you should be naturalised. That's how it works in many European countries.
He was a UK citizen from birth, but only after we let them know he was eligible. Sounds weird but that's how it always works: we went to the American embassy in London to apply for his US passport when he was a couple of months old, after filling out all the paperwork, and the person there (after giving us an oath and making an actual decision that everything was in order, fortunately straightforward in my case) said "Congratulations he is now a US citizen and has been since birth".
Sometimes they change the rules and it's even weirder: when I was an adult I became a Canadian citizen from birth (my mother was born there, but they didn't previously allow dual citizenship). So was I or was I not a Canadian citizen when I was ten years old? Not according to the laws at the time, yes according to the laws now...
These metaphysics of retroactive citizenship are at least as complicated and confusing as the metaphysics of retroactive gender that the most radical trans activists insist on.
In countries whose histories are most like ours, it is not unusual. Birthright citizenship is actually the norm in North and South America. This makes perfect sense because of the way these societies, like the US, were peopled by historical immigration.
Yea, while it clearly seems there’s no basis to reinterpret the 14th amendment, the post could have pointed out that only a minority of countries actually follow birthright citizenship to this extent. So clearly all those issues can be solved.
Also, wouldn’t a child born to a diplomat still get a birth certificate? So birth certificates *already* aren’t strict proof of citizenship.
Do children of diplomats get ordinary birth certificates? Or do hospitals issue special ones? Or do they request the actual birth certificate from the parents’ home country?
It depends on the country. Some of my kids were born abroad, received a birth certificate from that country that states at the bottom "not eligible for citizenship." Then get an American CRBA (Consular Report of Borth Abroad) from the Embassy, which is equivalent to a birth certificate. There are rules about transmitting citizenship when you are born abroad, but not an issue if you are a U.S. diplomat.
None of the challenges listed above are really that big of a deal -- overcome in most of the world.
In the USA there are just regular birth certificates. So the children of diplomats sometimes get citizenship becuse the parents just...turn in the birth certificate. POst wrote an article in 2023 about a case.
Shouldn't this be left to Congress to update policy or more importantly (but less realistic) enact a Constitutional amendment? Based on an originalist interpretation of the text this should be upheld 9-0 (in a perfect world) but given the laughable manner in which the Court has pivoted, 5-4 ruling isn't out of the question.
A 5-4 decision that could swing either way. After its ruling on presidential immunity—in its radicalism the jurisprudential equivalent of both threatening to invade Greenland and demanding tribute for it—this Supreme Court has to be considered as great a threat to the constitutional order it claims to uphold as is the demented President they serve, separation of powers notwithstanding.
I feel like I'm the only sane person whenever the presidential immunity ruling comes up. I don't see how it could have been any other way - the presidency is unworkable if they are not immune for official acts!
>The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from
criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune
Note that her opinion was joined by Kagan and Jackson.
And the majority's response was not reassuring:
>The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” Post, at 18 (opinion of SOTOMAYOR, J.); see post, at 26, 29–30; post, at 8–9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.
No, they said that actions where he is not immune only include ones where he is completely and obviously not acting as president. So he presumably can’t murder someone in the street.
But they said using the DOJ to do any manner of sketchy things was fine, so I don’t understand how ordering the military to murder someone wouldn’t be an official act.
The Court ruled that a president has absolute immunity for actions that fall within their "conclusive and preclusive" constitutional authority.
Definition: These are powers granted exclusively to the president by the Constitution that Congress cannot regulate or criminalize.
Examples: Granting pardons, vetoing legislation, recognizing foreign ambassadors, and making appointments.
Specific Ruling for Trump: The Court held that Trump’s discussions with Justice Department (DOJ) officials about investigating election results fell into this category, meaning he could never be prosecuted for them.
2. Presumptive Immunity: Other "Official" Acts
For actions that are "official" but not part of the president's core constitutional powers, there is a presumption of immunity.
Definition: These are acts within the "outer perimeter" of the president’s official responsibility.
The Test: To prosecute these acts, the government must prove that doing so would pose "no danger of intrusion on the authority and functions of the Executive Branch."
Specific Ruling for Trump: The Court classified Trump’s pressure on Vice President Mike Pence regarding the certification of the election as an official act, granting it presumptive immunity.
3. No Immunity: "Unofficial" or Private Acts
The Court affirmed that a president has no immunity for unofficial acts.
Definition: These are actions taken in a private capacity, such as acting as a political candidate rather than as the head of the executive branch.
The Distinction: The Court noted that "not everything the President does is official." However, they left it to lower courts to sort through specific evidence to decide which of Trump's other actions (like his tweets or speeches on January 6) were private versus official.
They said discussions with DOJ were fine. This has long been the precedent ("executive privilege"). They also say he has "exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials".
If Trump orders the military to murder someone, it would (presumably) be an unlawful order that the person carrying it out, at least, could be charged. I'll refrain from speculating on what Trump's liability would be in that case, e.g., if they would distinguish discussions from orders, for example.
Exactly. That part is obvious. The case-by-case determination of whether a particular act was an official act of the Presidency, vs an ultra vires personal gambit, is where the meat is.
if `subject to the jurisdiction thereof' is interpreted as `complete political allegiance', it seems they would then proceed to denaturalize anyone who has dual citizenship which would lead to some headaches. (according to claude, there are ca. 200,000 us-israeli dual citizens, for instance)
There are parts of the MAGA coalition who are nearly drooling at the thought of abolishing dual citizenship. (It's been an explicit agenda item of American neo-Nazis for decades because, in their theory, it would allow the deportation of all Jewish Americans to Israel.)
For what it's worth, I would be interested in reading the affirmative case for dual citizenship for adults. I get why you might want a kid to be able to choose their allegiance from a set of options once they reach the age that they're able to make a decision like that. Once you're all grown up, it's not so clear to me.
One of the (other) arguments against Obama is that even though he was born in the US he was also a citizen of Britain through his father and therefore was ineligible. My response was always “America is going to let some other country tell us who can be our president? fuck that”
"You take the oath, cool, you're an American now, we DGAF what any other country says" is an angle that didn't occur to me. International law is funny and made up!
My understanding is that Canada considers me a Canadian citizen and the United States considers me an American citizen, and neither recognizes what the other country considers me as.
The main reason for permitting it in my view is the sheer unenforceability of prohibiting it. I've been told by multiple people who have lived abroad that, in other countries that forbid dual citizenship, if you as an American citizen go to the U.S. embassy to officially renounce your American citizenship the embassy *staff* will flat out tell you just to pretend that you've renounced your American citizenship because it's not like there's any way the other government can check that or force the U.S. to strip you of citizenship. The entire thing works on the honor system and "violations" are all but undetectable.
I had to look at this for work reasons one time- there are many reasons why it's unenforceable:
1. Lots of developing countries lack the state capacity to have a list of all of their citizens. Is so-and-so a citizen of Armenia or Chad or the Philippines? What's their legal status there? Hey who knows
2. Lots of developing countries have weird citizenship laws that we can't control. Several of them, like Iran, simply reject the very concept of renouncing your citizenship- Iran and a few others will consider you a citizen no matter what you do or say. So is that person a dual citizen now or not?
In my head canon, when you swear allegiance to a thing, you can't continue to affirm equal allegiance to another equivalent thing. The logic just doesn't logic. You don't have to rebuke or denounce second thing, but there must be a monotonic ordered list.
The problem in China at least is that they check your visa/passport when you leave so if you try to leave with a US passport they’ll know you’re a US citizen and take away your Chinese passport. And you can’t leave with a visa in your Chinese passport because the US wouldn’t give you a visa if you’re already a citizen.
Do they search your luggage on the way out to make sure you don't have a second passport or something like that? If not, I don't think that's functionally all that significantly different from the US rule that you need to use the same passport for all parts of an overseas trip. And does taking away your Chinese passport actually legally strip you of your Chinese citizenship or does it just mean you don't have a Chinese passport anymore? Even if the US government forces someone to surrender their US passport, that has no effect on their legal citizenship; it just means they don't have the physical document anymore.
The difference is China has have immigration control when you leave that checks the visa/passport you are using to go to the other country, the US doesn’t.
I understand (from what other people tell me) that they revoke citizenship which includes taking the passport. But since you can’t really vote there anyway the biggest implication of losing citizenship is that you now need a visa to go travel there.
It makes travel easier because there are some countries that require a visa for Americans but not necessarily for the other country’s passport.
And diaspora voters tend to be more liberal (not always—but in general). So it seems like it would be good for liberalism if they can still vote in their home country elections even after they become US citizens.
i mostly feel that being allowed to vote somewhere you do not reside is a bug (rather than a feature), although as long as it is legal you should go ahead an do it, since those voting for the opposition will, as well.
Idk. I feel like I should be allowed to vote in both Seattle and Memphis since I’m connected to both places, at least for local elections. I don’t, but I should be able to
I very much like the idea of everyone having two votes, one cast in the district where you reside, the other where you work. If you don't work, you get two votes at home.
If you split your time between two homes, perhaps that should be allowed, too, if you give up your workplace vote.
1) Birthright citizenship is bad policy. It is an incentive to illegal immigration. Most countries don't have it. We would be better off without it.
2) Birthright citizenship is clearly and unambiguously defined in the Constitution and court precedent. It is the law of the land until and unless it is changed through the democratic processes described in the Constitution.
I fervently wish for the Supreme Court to uphold the solidly-established meaning of the 14th Amendment, despite the fact that I hope the 14th Amendment will eventually be modified or repealed. I trust in our Supreme Court to uphold bad laws with the same vigor as good ones.
I do not think the Supreme Court will rule in Trump's favor here, but your "trust" in them indicates that you are a naive idiot. They have repeatedly struck down laws and regulations with zero legal basis other than that the Court, acting as an unelected super-legislature, believes them to be bad public policy.
The Roberts court has a good record of upholding bad but legal laws. Earlier courts were alarmingly eager to rule based on which outcome they felt was morally right.
I wonder how many other commenters are native-born citizens who wouldn’t be so if these rules had been in effect at the time of birth. I am. Also, I really think birthright citizenship is one of the most fundamental components of America’s exceptional greatness and am not willing to cede an inch on it. In short, fuck these people.
+1000 on "one of the most fundamental components of America’s exceptional greatness"
Right up there with "I can never 'become' Japanese or French or Turkish or Swahili, but **anyone** can become an American".
Ironically, wouldn’t this make naturalized citizens *more* secure in our US citizenship status compared with natural born Americans? I don’t have to rely on my birth certificate or try to prove that my parents were citizens or whatever. I can show you my naturalization certificate! I attended a ceremony and took an oath and everything!
Also, +100,000,000 to “fuck those people.”
I assume birth certificates before some critical date would still prove citizenship.
Yes, but in the future, people who were born in and only knew life in the US would feel less secure in their citizenship than someone who naturalized at age 40. That seems screwed up.
The goal of the administration is preventing “anchor babies,” but their proposal seems to go too far. Some countries in Europe have a form of birthright citizenship that kicks in if you have more than a certain number of years of residency before age 18.
This only works as well as it does there because the government is more invasive with data collection (on the surface level).
I lost my passport for a bit and it made me think about how my physical birth certificate, a piece of paper from more than a quarter-century ago, was the only straightforward way I had to prove I’m even allowed to be here.
My parents both eventually became citizens, but I am not sure they had permanent residency when I was born. In the case of my brother, they certainly didn’t.
I think it is absurd that I might have had to become naturalized under the administration’s order. I know no other country and never spoke anything but English with complete fluency. I would have been a foreigner in any other land.
Great! We should make folks like you citizens. But the citizens of the United States should decide who gets citizenship, not illegal aliens who violate our laws.
In ratifying the 14th Amendment, the citizens did decide who gets citizenship.
I'm a citizen of the United States, and I think we should decide that you shouldn't get citizenship. Maybe I can get a majority of my fellow citizens to agree with me.
You are talking about denaturalizing a citizen. This is in response to my point which is that the United States should act like most of the world’s countries and determine what non-citizens are granted citizenship.
In response to J Wong. It is an absurdity that the citizens who ratified the 14th amendment thought that people who came here in violation of our laws could get citizenship for their kids. It was a noble effort to guarantee citizenship to former slaves and their progeny.
I'm not denaturalizing anything. You might think you're a citizen, but that's only because your interpretation of the Constitution and the law have always been wrong. The fact that the US government also thought you were a citizen is immaterial. We the actual citizens of the US decide whether you are or were ever a citizen, and we say you aren't and never were.
Those are sophisms. Your illogical arguments, followed to their logical end, would result in no law. If I thought you believed them, I would accuse you of being an anarchist.
Did you read the EO? The claim over who doesn’t get citizenship is much broader than just “illegal aliens”
Good. I was hoping for that.
"It is an absurdity that the citizens who ratified the 14th amendment thought that people who came here in violation of our laws could get citizenship for their kids."
ITYM "the children of people who came here in violation of our laws could get citizenship for themselves". It's a subtle but important difference (ethically, not legally).
People here on visas are not illegal aliens
You are contradicting yourself https://www.slowboring.com/p/trumps-war-on-birthright-citizenship/comment/205010049?r=bwkxt&utm_medium=ios
You’ll have to spell it out. I don’t see it.
Usha Vance’s parents immigrated to the US only a few years before she was born and may not yet have had permanent residency. Chances are, she would not have been an automatic citizen under this policy
So?
Just wondering if they thought this through. If the problem is anchor babies, it seems their solution goes a bit further
Me! (Probably. My parents moved here for work and didn't naturalize until after I was born.)
"Some birth certificates would prove citizenship, and others wouldn’t ..."
Really important point that gets at how profoundly destabilizing this would be - and the ripple effects would call into question the citizenship of a LOT of Americans. Because if birthright citizenship didn't mean what we historically thought it meant, now you have to prove that your parents, and their parents, and THEIR parents, etc. had sufficient legal status for citizenship to be conferred by your birth in America. It ends up being a difficult problem of turtles all the way down ...
So in my own case - I'm the third generation in America on my dad's side. I have a birth certificate, but does that count? Well, only if my parents are both provably citizens or lawful residents under this new standard. And that's only true if THEIR parents are also provably citizens or lawful residents. And now that starts getting tricky - my dad's parents were both from immigrant families, who came to America in the early 1900s from what is now Lithuania and Ukraine but were at the time part of the Russian Empire. Would I be able to find enough documentation from this period to verify that they were citizens, and therefore my dad is, and therefore I am? It would be pretty hard!
I don't think it's an exaggeration to say that the Trump Administration would create a massive legal grey area here that would give them an opening to denaturalize a LOT of people who thought their citizenship was rock solid. And if you think "oh they'd never do something so extreme" I will just say that my citizenship depending on Trump and Stephen Miller showing prudent restraint and forbearance is not an ideal situation....
> I'm the third generation in America on my dad's side.
Sorry, JD Vance said it has to be at least five generations to count.
Fight against the United States n 1865, you're a great American, fight for the United States in 1945 you're not.
If the Trump Administration wins this case they will have what amounts to a legal precedent for Vance's view that "heritage Americans" count more. Some citizens are more equal than others, if you will ...
As someone whose ancestors got here before JD Vance’s (1763) and won a DAR essay contest as a youth, I would like to express the utter contempt I have for this notion.
Me too also! DAR on both sides of the family. You and me, James L., we get to decide who lives and who dies, just like Crow T Robot.
Gonna start carrying my whole ancestry.com paperwork in the car ffs
They won't look at it. They'll just shoot you.
Yeah…
Well, if he did say that, that rules out his kids.
Just for reference, I'm getting it from his 2024 RNC acceptance speech:
"Honey, I come with $120,000 worth of law school debt, and a cemetery plot on a mountainside in Eastern Kentucky." After the laughs, he continues: “Now in that cemetery, there are people who were born around the time of the Civil War. And if, as I hope, my wife and I are eventually laid to rest there, and our kids follow us, there will be seven generations just in that small mountain cemetery plot in Eastern Kentucky."
I just realized that if my kids and I are buried in the parish cemetery where I grew up, it would also be seven generations buried there. But my kids and I view ourselves as the descendants of immigrants who share more in common with people crossing the Sonora desert to freedom, not some XL-American with a greater claim than everyone who showed up a little whIle later.
Importing foreign concubines for reproductive purposes doesn't affect patrilineal legitimacy.
He may think that, but when you grab ahold of the tail of the tiger of this sort of ugly thing, it's the tiger that decides where you end up, not you. Stoke the flames, and don't be surprised if your own kids are the ones that get burned.
I suspect he would be willing to sacrifice his children for the sake of his political project.
Extremists have a lot of political disadvantages, but one of their advantages is that they don't care about their loved ones as much as normal people do.
One thing I've realized about this current supreme court is how little they care about any reliance interest or destabilzation by overturning precedent. One day you have a right then poof, sorry not sorry, you don't.
This is precisely one of the most alarming things about our current moment. It's not an exaggeration to say that no right, no matter how fundamental or secure it may seem, is safe when institutions behave in this way.
Carlin called it
If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized. It would be relatively easy to draw a line and say everyone born from today onwards is subject to the corrected rule. We have precedent for that. We could perhaps call it "grandfathered in".
"If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized."
That doesn't follow at all. There's a huge difference between a country that never had birthright citizenship and kept its citizenship rules consistent, and one that used to have birthright citizenship but had it change suddenly and retroactively.
It would be good if there were one international standard for this. I don’t have much of an opinion on jus soli vs jus sanguinis so long as all countries operate along the same rules, but they don’t. It’s not right for there to be stateless people.
If there was an international standard it would jus sanguinis. The issue with that approach is that you have large populations of people currently not accepted as citizens in any country. If you carried jus sanguinis forward, that would continue.
Yeah. Though those people are fucked currently too
"but had it change suddenly and retroactively."
I think the 14th amendment is clear and the Trump administration is wrong. But I don't see it be "retroactive" and I'm not sure how you would make any change here and it not be "sudden."
Remember that court rulings are about interpretation of the law, not legislation. With legislation changes, one can say, "Those were the old rules; these are the new ones." With a court ruling, the implication of a change of interpretation is that the previous interpretation was incorrect and should never have been considered the law at all. Thus, a ruling in favor of Trump on birthright citizenship would imply that several people who thought they were citizens never were in the first place. That's where the retroactive aspect comes in.
Yes and no. There are plenty of times when the court has ruled that things will be a certain way going forward, but don't require retroactivity. E.g. Police were required to provide Miranda warning going forward, but all the people in prison before that ruling were not released because they hadn't gotten the warning.
Miranda is not a great example, because the purpose of an exclusionary rule is to disincentivize improper police behavior. It was too late to do that re people already in prison, because the police behavior was not improper when they were convicted.
Just look at the tariffs for example. If the supreme court rules them unlawful, they'll have to be refunded.
The Trump Administration is trying to totally upend over a century of settled citizenship law by executive fiat. That's fundamentally just a massively destabilizing thing to do (and that would be true of upending long-settled citizenship law in any country with any system).
This is a common misperception I see about these sorts of highly destabilizing Trump Administration actions. People who share Trump's normative preferences want to give him the benefit of the doubt that, no matter what particular load-bearing pillar of the rule of law he is trying to smash, he will make some reasonable accomodation and things will be OK. But that doesn't address the fundamental problems that (1) smashing load-bearing pillars of the rule of law is bad on its own terms, and (2) an Administration that behaves this way can't necessarily be counted on to pursue reasonable and stabilizing accomodations.
> destabilized
Since those countries have always had this system, I believe the word you're looking for is "unstable" and, uh, isn't that what conservatives say about Europe?
Or say Syria?
The situation you are describing would be destabilizing, but it's not the situation described in the post.
Trump has articulated no clear limiting principle that rules out what I am describing. And I wouldn't say, in general, that he's a "limiting principles" kind of guy ...
He's even said that he is only limited by his morality (whatever that is) -- in other words, that he considers himself free to do anything he's willing to do, even if it's a huge departure from what's customary or legal.
Your birth certificate would be fine because it predates the trump order.
Yes, because the Trump administration is known for its reasonableness and habit of acting in good faith. I'm sure they wouldn't claim that a victory at SCOTUS also authorizes retroactive application of the rule. (Note that the administration's position at SCOTUS, as I understand it, is that they aren't asking for a reversal of Wong Kim Ark, they are arguing that Wong Kim Ark never decided the question at all -- i.e., that there would be no constitutional bar to retroactive application of the rule if Trump chose to do that.)
Suppose the court allows this, and the EO goes into effect.. it's still an EO correct? And just like hundreds of EOs are reversed every four years, one can bounce around being a citizen and non-citizen every 4 years.
And you can imagine someone in labor while a live telecast of an EO signing plays in the background. "PUSH, NOW! or no citizenship" Heckuva way to run a Republic.
We're rediscovering, from first principles, why we need things like the rule of law and a clear, stable definition of citizenship...
Yes, it is an EO and thus theoretically subject to being reversed, although what I suspect would happen if the current EO is allowed to stand is that, if a subsequent President tried to reverse it, SCOTUS (assuming the majority that upheld the first EO is still on the bench) would strike the new EO down as being unconstitutional due to it intruding on Congress' powers under Article I to set rules for naturalization.
This is making a lot of assumptions.
Not really. If SCOTUS says the 14th Amendment doesn't grant citizenship to Group X, then a subsequent EO that purports to say Group X are citizens is, by definition, unconstitutional -- Congress has plenary power to set rules for naturalization of non-citizens (lots of case law to this effect, including SCOTUS decisions with a majority of currently sitting justices) and thus the President can't grant citizenship by EO. You would need to pass legislation naturalizing everyone meeting the old criteria (assuming you can't get SCOTUS to reverse itself) because, from a legal standpoint, those people were never citizens in the first place.
Just the assumption of bad faith and values approximately antithetical to ours. Easy things to accuse an opponent of, sure, but I can't think of a western politician in the past half century or more who has done more to justify such assumptions.
The case is not about the executive order. It is about the extent of birthright citizenship. The executive order was just a mechanism to get the issue of birthright citizenship into court. If the Court rules that the children of illegal immigrants, or people here on temporary visas, are not "subject to the jurisdiction" of the US, then none of those people are US citizens, period, unless some statute grants them citizenship.
Right - and furthermore, if there exist all these conditions under which being born in the United States doesn't make you a citizen, and all these American-born people who aren't citizens, then just having a birth certificate showing that you were born in the United States is insufficient as a basis for citizenship! Hence my comment.
Suppose Trump wins this case, and then Stephen Miller comes along and decides to denaturalize me to make an example out of someone who has critized Trump (I'm a college-educated lib so the politics would be good for him). My birth certificate wouldn't be enough, because the government could say, "OK, prove that your parents were subject to the jurisdiction of the US. Then prove that THEIR parents were too." I have a passport, but my birth certificate was a supporting document to issue that, so same problem. I'm registered to vote, but if I can't prove citizenship based on my birth certificate, now suddenly I'm facing felony voter fraud. The *possibility* that someone born in the USA might not be a citizen after all makes this incredibly messy!
We can't be sure of that. And I feel like this unwarranted assumption of stability and reasonableness is a pretty common mistake people make whenever Trump starts smashing load-bearing pillars of the rule of law.
At some level, I get it - I personally oppose almost all of Trump's issue positions, but I'm just a hated libtard, and the public broadly agrees with Trump about a lot of things - immigrants are bad, law enforcement should be highly aggressive, cities are crime-ridden hellholes, drug dealers need to be crushed, foreign aid is terrible, etc. So a lot of people are inclined to give Trump the benefit of the doubt when he starts ripping up the Constitution - nullifying the 14th Amendment to remove immigrants; proclaiming that ICE doesn't need warrants so they can bust down more doors; garrisoning troops in cities; blowing up rather than interdicting (what he claims might be) drug boats; revoking funding duly appropriated by Congress to dismantle USAID; etc. I don't doubt that all of this stuff is good politics for Trump. But people shouldn't hand-wave away the attacks on the rule of law just because they agree with Trump at the level of values. The rule of law is important on its own terms! No matter what normative goods you most prefer, having the rule of law is a long term net benefit to basically all of them.
And a world where Trump can rewrite long-settled citizenship law by fiat is one where the rule of law and the Constitution have been meaningfully weakened. We can't be sure that power exercised this way will turn out to be reasonable and constrained. When these pillars fall, a lot of things come crashing down with them ...
I agree with this. I also think we have to grapple with the fact that a non-negligible share of the population isn't merely ignorant of the benefits of the rule of law, but rather rejects (maybe just instinctively rather than intellectually, but still consciously rejects) the notion that the rule of law is good. This is what it meant to be on the far right in the 19th century, like if you were a czarist in Russia: authority should not be constrained by words on pieces of paper, but should be free to act to defeat its enemies. That impulse is part of human nature. It's been successfully suppressed in the West for a while through education. But it's still there deep in the recesses, and these days people are exposed to advocacy for it, and those who agree with it, both among elites and in the general population, may still be a minority but they aren't an insignificant minority.
I'm with you in this. There is a court order that my grandfather was born in the U.S. so I am at least 3rd generation on my father's side (4th if the 1st natural born generation is 2nd). But! How do we know that my great-grandfather didn't bribe the judge?
Basically the Trump administration is arguing that _it_ gets to decide citizenship and any pretext to deny is up to them. Courts appear to be pushing back on the pretextual arguments. I don't think they would deport everyone but 2nd class citizenship is a real possibility.
This is precisely what's at stake. And I think the creation of a de jure 2nd class citizenship is a very plausible end goal that is very consistent with the underlying logic of Trumpism.
I suspect many blue states won’t comply either, further complicating things.
Maybe? I can never figure out how the case of Sakharam Ganesh Pandit applies to these sorts of retroactive cancellations.
If illegal/undocumented immigrants aren’t “subject to the jurisdiction” does that mean they can’t be tried for crimes? Generally those, such as diplomats, who aren’t granted birthright citizenship are also exempt from following American laws through diplomatic immunity.
This is the exact point I've made ever since hearing the stupid “not subject to the jurisdiction of” argument decades ago and I hope one of the justices points it out in a concurrence.
Seems like the argument is that the Supreme Court should define and interpret the phrase "subject to the jurisdiction" to mean that you aren't subject to jurisdiction for purposes of citizenship but are still subject to jurisdiction for purposes of crimes. Problem solved!
Likewise, doesn’t that make Venezuelans automatically citizens of the US since we claim jurisdiction to prosecute Maduro for drug crimes?
Eddie_Murphy_smart_thinking.gif
Or deported! Isn't it an exercise of jurisdiction to arrest and transport a person, on the basis that they haven't been given permission to reside in your country?
This one drives me insane because the administrations position so obviously contrary to both the legal tradition and the discussion in Congress at the time. I went back and read all the congressional debates and it’s 100% clear the intended effect was to give citizenship to what we would now call “illegals”.
At the time those opposed to the wording worried it would make citizens of “Chinese” and “gypsies”. Rather than denying that, those that voted in favor explicitly said that that was their intention. The record is so clear that people trying to obfuscate it rice me nuts.
This is from a law review quoting the drafter the of amendment:
Senator Cowan renewed his similar objections from the Civil Rights Act from a month earlier, asking: “Is the child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”He called these groups “trespassers” who had “no allegiance” to the United States government. Senator Conness of California answered Cowan, declaring that “children of all parentage whatever” born in the U.S. would be citizens under the proposed clause. The phrase “subject to U.S. jurisdiction” would mean granting citizenship for all “human beings born in the United States.”
Conness was not even sympathetic to Chinese immigration. He conceded (unnecessarily and unfairly) that Chinese migrants “all return to their own country at some time or another,” and he conceded that he shared concerns about the increase of Chinese immigration to California. Nevertheless, he confirmed that he supported broad birthright citizenship, confirming the same position he had taken on the Civil Rights Act of 1866
(Edited some formatting since I copied from a pdf)
They aren't going to make this argument in court, but if they spoke candidly to you, I think what they'd say is "Sure maybe they intended to give citizenship to what we'd now call 'illegals,' but they had no idea back then that there would be so many immigrants, and from so many different parts of the world. So therefore their original intent can't be relied on as a guide, because that intent was based on certain incorrect assumptions as to how common a problem this would be, and doesn't reveal what they would have intended if they had known what would happen. If they had known that we'd have millions of non-European immigrants here in 150 years, they would have done something totally different, and we can and should go ahead and just fix that now."
I realize that I shouldn’t necessarily expect consistency for this court but if the standard is “the founders couldn’t predict the future and so we shouldn’t take their word exactly as written” I don’t see how the 2nd amendment survives. A world where every gun was a single shot muzzle loader seems to be pretty different for our world.
Oh, for sure. That's why they won't actually make these arguments in court. I'm just saying this is the source of these advocates' moral intuition for why they're right. The 2nd amendment point doesn't strike them as inconsistent with that intuition, because they believe that surely the founders would have been fine with widespread ownership of AR-15s.
Of all the SCOTUS cases I am most sure the administration loses utterly this is at the top of the list.
I mean the precedent, history and tradition and practical implications all point that way BUT with this Calvin ball Supreme Court, it’s hard to be certain
Yes similar to the tariff case, 9-0 would be the most reasonable outcome.
out of curiosity: what was your expected outcome before the presidential immunity ruling?
also out of curiousity: i asked claude what it would predict for the birth right citizenship ruling, and it said 5-4 or 6-3 to strike down the EO with low confidence.
I expected Trump to win on the presidential immunity ruling -- there was literally no way SCOTUS would ever find that a President could be criminally charged for official acts of office -- but I expect the administration to lose this simply because it would implode the federal court system and potentially start a civil war. That said, while the ruling should be 9-0, I will not be surprised to see it being 7-2 with Thomas and Alito taking the opportunity of their vote not making a difference to go full Fox News.
I'm pretty sure Thomas supports birthright citizenship.
Thomas has some very strange views about the legacy of Black Americans who are descendants of slaves. I could see him saying the whole point birthright citizenship was to confer status on former slaves and their descendants, but is not applicable to voluntary immigrants.
I'd like to think so, but Thomas has been letting me down recently!
why would it have either of the effects you are describing?
1) In re the federal court system, I have no reason to think that the existing cases deal with every factual/legal permutation that can be conceived of relating to this order and SCOTUS killed off nationwide injunctions, so each affected person will need to file a separate lawsuit unless they can find a class action that covers their situation. Further, depending on the exact wording of the ruling, it would potentially open the door to lawsuits based on theories that the EO's position "has always been the law" and the decision should be given retroactive effect.
2) Literally a couple hundred thousand small children would be stripped of their citizenship immediately by a ruling affirming the facial language of the EO (which operates prospectively only), but what do you supposed the likelihood is that DHS/ICE -- the organizations whose official social media pages are spamming white nationalist propaganda about deporting 100 million(!) "illegals" (a number that presupposes almost every non-white person in the country is an illegal immigrant) -- is going to scrupulously apply the EO in that manner, let alone the possibility that the administration after winning immediately issues a new EO stating that the ruling will be applied retroactively to those born after, e.g., 1986 (the amnesty for illegal immigrants under Reagan), 1965 (the Hart-Celler immigration act that substantially increased immigration from majority non-white countries), etc., etc.?
doesn't the ruling say that former (!) presidents cannot be prosecuted for acts that they took while in office?
If it loses, it loses 7-2. If it wins, it wins 6-3.
Yes, if the Supreme Court decides it's time to call some fouls on Trump, this would be a good case to start with. Birthright citizenship is right there in the plain language of "the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that
"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," to quote the dissenting opinion of Justice Harlan in Plessy v. Ferguson. And a ruling against birthright citizenship would put these justices in the same category as the justices who voted with the majority in Plessy.
I wish I shared your confidence. If that's the case, then why didn't SCOTUS just let all the appellate rulings stand without even granting cert?
The Supreme Court granted the Trump administration's request for certiorari before judgment which meant that appellate courts never fully ruled on the case and instead it was taken directly to the Supreme Court. Both sides have pretty good reason to want the case to be decided quickly and it's plausible that there was 9-0 consensus on granting certiorari before judgement.
Unlike Roe I think overturning Wong Kim Ark is extremely unlikely. It was 6-2 decision in an era when casual brazen racism was the norm across much of society including elites, the dissent at the time was poorly argued and there is simply no good textual or originalist case for overturning it. To be honest I think the modal outcome is a 9-0 decision similar to certain free speech cases.
Only four justices have to agree to grant cert to take a case. You can imagine any number of reasons (or combinations thereof), all the way from agreeing with the administration (*maybe* at most two of them?) to wanting to definitively shut down the question altogether (three or more of them).
I'm hoping that SCOTUS took it because Roberts sees an opportunity to win a massive amount of political capital for the Court by setting up what should be an easy 9-0 rebuke to the administration.
I hope you’re right, but I would be absolutely shocked by a 9-0 result.
My guess is that they will lose, but I don't think it will be as clean of a loss as it should be. The Court will probably throw them a few bones.
>In a savvy bit of litigation strategy, they argued that if they couldn’t get a nationwide injunction, they should be able to represent a nationwide class.
I am a fan of the ACLU in general, but there was nothing particularly savvy about it. Trump v. CASA explicitly noted that that was an option, and it is a no-brainer for this issue; the key to a class action is that "that the questions of law or fact common to class members predominate over any questions affecting only individual members" which is obviously the case.
Thanks, I was coming down here to say this!
Whenever people are like “Trump is a moderate” it seems to be an important data point that he’s so reactionary he’s trying to overturn legal precedents from the 1800s in a reactionary direction. He’s trying to take us back not even to the 1950s but the 1800s (maybe a steampunk version of it like the one in Bioshock Infinite).
I think he's really trying to take us back, not to 1800s or 1700s America, but 1600s France. L'etat, c'est Trump."
He's also doing Napoleon's Arc de Trump
Breaking news: ICE shot and killed a man in Minneapolis. It’s on the NYT front page. There’s also an image of ICE agents holding a man down while *pepper spraying him in the face.*
From NYT reporting, a man with a gun who was licensed to open carry came near ICE agents, they attacked him, and then shot him. There's no indication so far he brandished the weapon or did anything to provoke ICE.
And like holy shit, this is like quite literally what the second amendment fetishists claim to fear from Democratic administrations. Are they gonna react?
Of course not. It's all about "who, whom."
let me try to record now some explanations ice will try to use: he had a gun, he was reaching for a gun carried by one of the agents, he was resisting arrest, he was paid to be there, something about his social media history ...
He was being disrespectful, what did he expect would happen.
in the video they just showed on the bullwark podcast, he was on the ground, had been disarmed and was shot in the back by one of the agents. if that is authentic, then it really looks like murder.
I may need to reword my response. I was intending to add to your list of ICE justifications.
Shut up! You're only allowed to talk about housing! Authoritarian summary executions of innocent citizens doesn't poll well for the Dems! Quick, say something about how it's morally evil to require two staircases.
i would rather talk about how the local police should be protecting people from this
Based on the press conferences I've seen from the head of the Minnesota Department of Corrections and the Maine Cumberland County Sheriff, we may be closer to that than you think.
If I say Abundance three times while looking into a mirror, will the spell be broken?
The 14th Amendment's definition of citizenship applies ONLY to the child so the parent's nationality or citizenship status is simply irrelevant. It says "All persons born...in the United States...are citizens of the United States..." It does not say "All persons born in the United States of at least one United States citizen...is a citizen of the United States."
ICE just murdered another guy in the Twin Cities. There is, again, video, and it's a pure execution.
https://www.startribune.com/ice-raids-minnesota/601546426
Some news reports claim that the man was "gunned down," but this is technically inaccurate as he was already "down" and therefore was more accurately "gunned sideways."
Sure seems like an awful lot of perfectly normal law enforcement agents being corrupted by Trumpian ideology!
“The past is never dead. It’s not even past.” We’re increasingly in the situation of refighting past battles. It’s time to start singing Battle Hymn of the Republic again.
Birthright citizenship is unusual globally and the UK got rid of it seemingly without too many issues in the 80s. Everyone gets the same birth certificate but the birth certificate doesn't entitlement you to citizenship.
Without getting into the specific issue of birthright citizenship- the real problem here is overturning 130+ years of domestic & constitutional law with the stroke of a pen. You can't run a functioning developed country where longstanding law gets overturned every 4 years. I'd be more sympathetic just on process grounds if Republicans wanted to pass this as a law through both houses of Congress
https://en.wikipedia.org/wiki/Major_questions_doctrine
I get that, I'm only pointing out that the problems Halina raises aren't really problems for most countries that don't have birthright citizenship.
Apparently the UK has thought about point #2: if a child is stateless and resides in the UK for at least five years, they can then be granted citizenship. So it was a potential problem, but they figured out how to address it (although still seems more complicated than necessary).
When I see someone write this, it makes me proud to be American.
It's really the Americas vs everywhere else. https://www.axios.com/2025/01/25/birthright-citizenship-world-map-trump
It's an example of American exceptionalism, that's for sure!
Like national parks we got this one right. We don’t have stateless populations at the whim of the state here because of this in the way they do in the Middle East and Asia.
And Europe?
Also another thing we got right. We’re citizens, not subjects of a German family. And we don’t have an established religion.
Virtually all new world countries have it. New world countries which were settled by conquerors and later immigrants with the existing populations physically destroyed are fundamentally different from old world ones that have been settled since time immemorial when it comes to this issue.
And birthright citizenship is a good thing. If you were born here, you're just as much a "Native American" as anyone else born here.
It's unusual in Old World countries, many of which were conceived of as nation-states.
It's the norm in New World countries which are immigrant countries at their core. Birthright citizenship is the law in Canada, Mexico, Brazil, Argentina, etc.
Yes exactly - I think the administration is totally legally wrong on this and I hope Scotus agrees. However the proposed system is used in various places around the world without any problems (numbers 3,4,5 on Halina's list don't make sense to me; paternity tests are not de rigueur as someone else suggested; etc). I'm a US citizen and just had a kid in the UK (my wife is not British either), but because I have permanent residency here (technically settled status, a type of indefinite leave to remain) the baby is a UK citizen. My name is on the birth certificate (the hospital couldn't care less about either of our immigration status), so I applied for a UK passport online (where the appropriate govt office checked my immigration status), all very easy and smooth. There's nothing inherently or morally or logistically wrong with such a system, although I do prefer the 'inclusive' US approach.
This is wrong. The lack of birthright citizenship is what creates stateless populations. See Jews after WW2, Kurds in Syria until last week, Palestinians in camps now, etc.
Halina wrote that the "practical implications would force a fundamental shift in how American society runs" and my main point is that she was wrong, especially her bullets 3-4-5. Most countries (Gemini says 75%) do not have birthright citizenship, and it is not a logistical problem at all. You are now focusing on her bullet 2 of statelessness, but the more natural way to avoid that is if all countries offer citizenship by descent (which is by far more common anyway). Of course sometimes there will be refugees, and some countries will disappear, and there will always be plenty of edge cases whom we should treat humanely and take seriously. But birthright citizenship is not the only way to solve that problem (indeed it doesn't really solve it for the first generation anyway).
If the court decides that the US was actually subject to napoleonic law, not common law, that would “force a fundamental shift” in the US, even though plenty of countries operate just fine under napoleonic law. Just because another system works doesn’t mean that a sudden jump to that system is easy or manageable without destroying everything.
True! I understood her (and other commenters here) to be claiming that the practical implications inherent to the alternate system -- such as supposedly two different types of birth certificates -- are what would cause a fundamental shift in how society runs, apparently unaware that it works just fine elsewhere. But perhaps they also meant the shift itself, e.g. regarding what to do retroactively (as other commenters have touched on), so I should have been more circumspect.
That being said, this wouldn't be like switching to Napoleonic law and I don't think it would cause a fundamental shift, if it were done carefully and cleanly. You'd have to grandfather a bunch of people in, and you'd probably have to turn the social security number into something more like a true national id number (which would be marked citizen or green card or whatever). Lots of people wouldn't like that (mildly including me), but I'm not seeing the fundamental change - ?
To reiterate I'm not advocating for this! I like birthright citizenship just fine, plus there is definitely some cost to changing, and anyway the constitution is pretty clear in the first place :)
The thing that seems to me like it would require a fundamental shift is that there are a lot of processes that ask for proof of citizenship and that accept US birth certificates as proof. If the 14th Amendment concept of "under the jurisdiction of the US" is overturned, then birth certificates will no longer be able to provide such proof. We would either require legislation establishing that anyone with a US birth certificate before a certain date is a citizen despite not having satisfied the citizenship qualifications in place at the time of their birth (since the court will have decided that the 14th Amendment *never* gave these people citizenship), or we would have a lot of chaos around determining citizenship for a large fraction of Americans.
Kurds in Syria until last week? What happened?
Many Kurds in Syria had their citizenship recognized by the state.
That’s great!
Is the claim here that if all those countries had birthright citizenship they wouldn't be stateless? Or something else?
Yeah, even in countries that are treating them nicely, being a permanent non-citizen kind of sucks, like here’s an explainer about Tibetans in India who can’t get citizenship even though some of their families have been there since the 50s: https://www.smalegal.in/home/the-stateless-status-of-tibetans-in-india. And India is generally welcoming to Tibetans, imagine how things are in countries that don’t like the refugee population they are hosting. If there was birthright citizenship in India eventually the non-citizen refugees would die and their kids would be Indian citizens.
Most countries naturalise you after a certain number of years - I agree it's cruel to eave people stateless for generations.
Yes. Anyone born in Jordan or Lebanon would be a citizen, period. These countries don’t want birthright citizenship because they want Palestinians and Other Arabs (and historically Kurds) to be at the whim of the state and easier to oppress and force out.
I thought the argument was they wanted them to retain Palestinian citizenship, although I agree once you get been in a country for some years you should be naturalised. That's how it works in many European countries.
Which Halina pointed out above.
> so I applied for a UK passport online (where the appropriate govt office checked my immigration status)
I don't understand this. Does it mean your child was not a citizen until you applied for their passport? That doesn't sound right.
He was a UK citizen from birth, but only after we let them know he was eligible. Sounds weird but that's how it always works: we went to the American embassy in London to apply for his US passport when he was a couple of months old, after filling out all the paperwork, and the person there (after giving us an oath and making an actual decision that everything was in order, fortunately straightforward in my case) said "Congratulations he is now a US citizen and has been since birth".
Sometimes they change the rules and it's even weirder: when I was an adult I became a Canadian citizen from birth (my mother was born there, but they didn't previously allow dual citizenship). So was I or was I not a Canadian citizen when I was ten years old? Not according to the laws at the time, yes according to the laws now...
These metaphysics of retroactive citizenship are at least as complicated and confusing as the metaphysics of retroactive gender that the most radical trans activists insist on.
Welcome to dystopia.
In countries whose histories are most like ours, it is not unusual. Birthright citizenship is actually the norm in North and South America. This makes perfect sense because of the way these societies, like the US, were peopled by historical immigration.
Yea, while it clearly seems there’s no basis to reinterpret the 14th amendment, the post could have pointed out that only a minority of countries actually follow birthright citizenship to this extent. So clearly all those issues can be solved.
Also, wouldn’t a child born to a diplomat still get a birth certificate? So birth certificates *already* aren’t strict proof of citizenship.
The Palestinian refugee problem is not “solved”.
Do children of diplomats get ordinary birth certificates? Or do hospitals issue special ones? Or do they request the actual birth certificate from the parents’ home country?
It depends on the country. Some of my kids were born abroad, received a birth certificate from that country that states at the bottom "not eligible for citizenship." Then get an American CRBA (Consular Report of Borth Abroad) from the Embassy, which is equivalent to a birth certificate. There are rules about transmitting citizenship when you are born abroad, but not an issue if you are a U.S. diplomat.
None of the challenges listed above are really that big of a deal -- overcome in most of the world.
In the USA there are just regular birth certificates. So the children of diplomats sometimes get citizenship becuse the parents just...turn in the birth certificate. POst wrote an article in 2023 about a case.
https://www.washingtonpost.com/dc-md-va/2023/11/25/virginia-doctor-passport-citizenship-nightmare/
What a wild story! Looks like with the help of Rep. Connolly, he was at least able to get it resolved in summer 2024.
https://www.facebook.com/CongressmanGerryConnolly/photos/honored-to-meet-with-dr-siavash-sobhani-this-week-after-applying-for-a-passport-/1010094083837527/
Chesterton's fence has this covered; removing it is the purview of racists.
Shouldn't this be left to Congress to update policy or more importantly (but less realistic) enact a Constitutional amendment? Based on an originalist interpretation of the text this should be upheld 9-0 (in a perfect world) but given the laughable manner in which the Court has pivoted, 5-4 ruling isn't out of the question.
A 5-4 decision that could swing either way. After its ruling on presidential immunity—in its radicalism the jurisprudential equivalent of both threatening to invade Greenland and demanding tribute for it—this Supreme Court has to be considered as great a threat to the constitutional order it claims to uphold as is the demented President they serve, separation of powers notwithstanding.
I feel like I'm the only sane person whenever the presidential immunity ruling comes up. I don't see how it could have been any other way - the presidency is unworkable if they are not immune for official acts!
If POTUS orders SEAL Team Six to whack a political rival, is that an official act? Asking for a friend.
I mean, I was arguing Biden should have done that to Trump and the Republican members of Congress and the courts, and I’m 100% vindicated
Of course not.
Why not? Or, less facetiously, who gets to decide which acts are “official”?
What argument is there that passes the red face test that ordering the murder of a political rival is an official act?
Justice Sotomayor is not as sure as you are:
>The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from
criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune
Note that her opinion was joined by Kagan and Jackson.
And the majority's response was not reassuring:
>The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” Post, at 18 (opinion of SOTOMAYOR, J.); see post, at 26, 29–30; post, at 8–9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.
The problem isn’t that presidents are immune regarding official acts, it’s how they went about settling the boundaries of official acts.
> it’s how they went about settling the boundaries of official acts.
I'd need to go back and read the ruling again, but as I recall, they basically punted on this?
Indeed. They did what they needed to do to keep Trump out of court before the election, and only that.
That makes me more concerned about their integrity, not less.
No, they said that actions where he is not immune only include ones where he is completely and obviously not acting as president. So he presumably can’t murder someone in the street.
But they said using the DOJ to do any manner of sketchy things was fine, so I don’t understand how ordering the military to murder someone wouldn’t be an official act.
1. Absolute Immunity: "Core" Constitutional Acts
The Court ruled that a president has absolute immunity for actions that fall within their "conclusive and preclusive" constitutional authority.
Definition: These are powers granted exclusively to the president by the Constitution that Congress cannot regulate or criminalize.
Examples: Granting pardons, vetoing legislation, recognizing foreign ambassadors, and making appointments.
Specific Ruling for Trump: The Court held that Trump’s discussions with Justice Department (DOJ) officials about investigating election results fell into this category, meaning he could never be prosecuted for them.
2. Presumptive Immunity: Other "Official" Acts
For actions that are "official" but not part of the president's core constitutional powers, there is a presumption of immunity.
Definition: These are acts within the "outer perimeter" of the president’s official responsibility.
The Test: To prosecute these acts, the government must prove that doing so would pose "no danger of intrusion on the authority and functions of the Executive Branch."
Specific Ruling for Trump: The Court classified Trump’s pressure on Vice President Mike Pence regarding the certification of the election as an official act, granting it presumptive immunity.
3. No Immunity: "Unofficial" or Private Acts
The Court affirmed that a president has no immunity for unofficial acts.
Definition: These are actions taken in a private capacity, such as acting as a political candidate rather than as the head of the executive branch.
The Distinction: The Court noted that "not everything the President does is official." However, they left it to lower courts to sort through specific evidence to decide which of Trump's other actions (like his tweets or speeches on January 6) were private versus official.
They said discussions with DOJ were fine. This has long been the precedent ("executive privilege"). They also say he has "exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials".
If Trump orders the military to murder someone, it would (presumably) be an unlawful order that the person carrying it out, at least, could be charged. I'll refrain from speculating on what Trump's liability would be in that case, e.g., if they would distinguish discussions from orders, for example.
Exactly. That part is obvious. The case-by-case determination of whether a particular act was an official act of the Presidency, vs an ultra vires personal gambit, is where the meat is.
I don't think the concept of "shouldn't" plays any role in the administration's actions.
if `subject to the jurisdiction thereof' is interpreted as `complete political allegiance', it seems they would then proceed to denaturalize anyone who has dual citizenship which would lead to some headaches. (according to claude, there are ca. 200,000 us-israeli dual citizens, for instance)
There are parts of the MAGA coalition who are nearly drooling at the thought of abolishing dual citizenship. (It's been an explicit agenda item of American neo-Nazis for decades because, in their theory, it would allow the deportation of all Jewish Americans to Israel.)
For what it's worth, I would be interested in reading the affirmative case for dual citizenship for adults. I get why you might want a kid to be able to choose their allegiance from a set of options once they reach the age that they're able to make a decision like that. Once you're all grown up, it's not so clear to me.
Dual citizenship means you don't need the consent of the country you are leaving to become an american citizen.
One of the (other) arguments against Obama is that even though he was born in the US he was also a citizen of Britain through his father and therefore was ineligible. My response was always “America is going to let some other country tell us who can be our president? fuck that”
"You take the oath, cool, you're an American now, we DGAF what any other country says" is an angle that didn't occur to me. International law is funny and made up!
it did not occur to you that ``we DGAF what any other country says'' would be the unofficial us position?
I was born here. My parents and grandparents were born here. I don't think about citizenship questions a lot.
My understanding is that Canada considers me a Canadian citizen and the United States considers me an American citizen, and neither recognizes what the other country considers me as.
The main reason for permitting it in my view is the sheer unenforceability of prohibiting it. I've been told by multiple people who have lived abroad that, in other countries that forbid dual citizenship, if you as an American citizen go to the U.S. embassy to officially renounce your American citizenship the embassy *staff* will flat out tell you just to pretend that you've renounced your American citizenship because it's not like there's any way the other government can check that or force the U.S. to strip you of citizenship. The entire thing works on the honor system and "violations" are all but undetectable.
I had to look at this for work reasons one time- there are many reasons why it's unenforceable:
1. Lots of developing countries lack the state capacity to have a list of all of their citizens. Is so-and-so a citizen of Armenia or Chad or the Philippines? What's their legal status there? Hey who knows
2. Lots of developing countries have weird citizenship laws that we can't control. Several of them, like Iran, simply reject the very concept of renouncing your citizenship- Iran and a few others will consider you a citizen no matter what you do or say. So is that person a dual citizen now or not?
In my head canon, when you swear allegiance to a thing, you can't continue to affirm equal allegiance to another equivalent thing. The logic just doesn't logic. You don't have to rebuke or denounce second thing, but there must be a monotonic ordered list.
Shrug. Saturday morning brain.
Maybe George Clooney can explain.
The problem in China at least is that they check your visa/passport when you leave so if you try to leave with a US passport they’ll know you’re a US citizen and take away your Chinese passport. And you can’t leave with a visa in your Chinese passport because the US wouldn’t give you a visa if you’re already a citizen.
Do they search your luggage on the way out to make sure you don't have a second passport or something like that? If not, I don't think that's functionally all that significantly different from the US rule that you need to use the same passport for all parts of an overseas trip. And does taking away your Chinese passport actually legally strip you of your Chinese citizenship or does it just mean you don't have a Chinese passport anymore? Even if the US government forces someone to surrender their US passport, that has no effect on their legal citizenship; it just means they don't have the physical document anymore.
The difference is China has have immigration control when you leave that checks the visa/passport you are using to go to the other country, the US doesn’t.
I understand (from what other people tell me) that they revoke citizenship which includes taking the passport. But since you can’t really vote there anyway the biggest implication of losing citizenship is that you now need a visa to go travel there.
Yeah, I think dual citizenship is pretty fucked up. If I don’t have it, no one else should either.
Dual citizenship is not like being a fan of two different teams in the same league. It's like playing for two teams in the same league.
I mean, my reasons are straight up envy, but that’s a perfectly valid rationale
It makes travel easier because there are some countries that require a visa for Americans but not necessarily for the other country’s passport.
And diaspora voters tend to be more liberal (not always—but in general). So it seems like it would be good for liberalism if they can still vote in their home country elections even after they become US citizens.
i mostly feel that being allowed to vote somewhere you do not reside is a bug (rather than a feature), although as long as it is legal you should go ahead an do it, since those voting for the opposition will, as well.
Idk. I feel like I should be allowed to vote in both Seattle and Memphis since I’m connected to both places, at least for local elections. I don’t, but I should be able to
I very much like the idea of everyone having two votes, one cast in the district where you reside, the other where you work. If you don't work, you get two votes at home.
If you split your time between two homes, perhaps that should be allowed, too, if you give up your workplace vote.
I believe:
1) Birthright citizenship is bad policy. It is an incentive to illegal immigration. Most countries don't have it. We would be better off without it.
2) Birthright citizenship is clearly and unambiguously defined in the Constitution and court precedent. It is the law of the land until and unless it is changed through the democratic processes described in the Constitution.
I fervently wish for the Supreme Court to uphold the solidly-established meaning of the 14th Amendment, despite the fact that I hope the 14th Amendment will eventually be modified or repealed. I trust in our Supreme Court to uphold bad laws with the same vigor as good ones.
I do not think the Supreme Court will rule in Trump's favor here, but your "trust" in them indicates that you are a naive idiot. They have repeatedly struck down laws and regulations with zero legal basis other than that the Court, acting as an unelected super-legislature, believes them to be bad public policy.
The Roberts court has a good record of upholding bad but legal laws. Earlier courts were alarmingly eager to rule based on which outcome they felt was morally right.