There are a lot of legitimate things people worry about with the court. This just isn't one of them. Even the extreme conservative judges that have been considered potential Trump picks have been caught calling this obvious.
There is this very unfortunate tendency of people to split everything up into with us or against us buckets. SCOTUS justices have their own thing which is neither MAGA nor stopping MAGA. It just can seem that way since one of the conservative justices things has been returning power over the executive branch to the president despite the fact that so much of our statues over the past 50 years have been written assuming semi-indepence of senate confirmed officers. But another one of their things is reading the constitution according to the original public meaning and deciding birth-right citizenship doesn't exist would embarrass them with most of their federalist society peers. This isn't even close.
And yes, Roberts does consistently try to avoid upsetting major planks of presidential agendas on both sides through clever little procedural moves (like saving Obamacare with a taxation argument). And yes, I think this term SCOTUS has been pretty cowardly in using procedural excuses to avoid having to stand up to this administration. They don't want to be the resistance. And after pushing judicial supremacy for the last century or so and creating the expectation that SCOTUS not congress was our constitutional backstop that isn't cool.
But this isn't a case they are dodging. If they'd wanted to avoid having to rule against the Trump administration they'd have come up with an excuse to avoid having to rule on the merits. Ultimately, remember, justices are people like you or I. They are subject to bias like the rest of us and like the rest of us it is much easier to find an argument to the conclusion you like. But they are still very smart knowledgeable lawyers who are the good guys in their own minds and aren't going to reach a deciscion that would be as intellectually embarrassing as this would be. Worst case they give a really narrow deciscion that doesn't decide much of it.
(This is also why it's damn important that there aren't a bunch of automatic appointments for each president...I don't want to see 3 Eileen Cannons on the court)
While the article points to supposed practical problems with removing birthright citizenship, only one country outside the Americas offers unconditional birthright citizenship, suggesting (a) the supposed practical problems are overblown, and (b) the debate should focus more on 'who do we want to be' rather than 'would it work to change'.
We were in Dubai. Their mix is 80% foreign/20% citizens. Thats not compatible with birthright citizenship. It appears that D’s want closer to 80/20, so they should appreciate an end to birthright citizenship.
Practically speaking, if the Supreme Court rules for the Trump administration here, they are essentially saying the plain text of the Constitution AND 125 years of precedent do not matter. Essentially, theyd overturn a key part of the 14th Amendment thru judicial review- a power that isnt actually granted in the Constitution
In effect the Supreme Court would be giving themselves a power to overturn the Constitution that is only based on precedent. Practically speaking it would be a Constitutional crisis, and should be treated as such an overreach of their power.
For people who immigrated in one of the late 19th Century waves (including many or most of my ancestors), they just came here, then they eventually went to a local courthouse, declared an intent to naturalize, later had some sort of hearing, and finally took an oath to the Constitution. Their kids may have been born before they filed their "first papers" but were automatically citizens by birthright. In the 1900 census, about 56% of the foreign born males over 21 had been naturalized and 8% had filed first papers while 21% were still "aliens" and 15% were unknown. So, between the time that the 14th Amendment was ratified and when Wong Kim Ark was decided, there were plenty of people who were born to parents who were "not lawful permanent residents" by the standards of the time and the Supreme Court would have understood that.
The thing about this case is that it calls into question in a fundamental way whether the Constitution is still the law:
- the text unambiguously supports the settled practice
- the overwhelming weight of the legal scholarship into the history (including from many conservative scholars) also supports the settled practice
- also, the practice is settled! this has been established unchallenged law since Wong Kim Ark!
I think the Supreme Court will rule against the Trump Administration (high confidence) and I don't think the Trump Administration will get more than two votes (low confidence) but if it actually goes out and rules for Trump, it would be a really devastating blow to constitutional government as such.
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.
Most countries do not confer birthright citizenship. A lot of the problems brought up in this substack are easily addressed by simply looking at how most other countries do it.
The short answer is because I’m a careless idiot. The longer answer is that a couple of months ago I switched email accounts due to retirement. In the confusion of changing a gazillion things I added an account. The older one has actually expired but they haven’t discontinued it again.
Most other countries also use napoleonic code rather than common law. It would be fine to do things either way, but issuing an order that starting in 30 days, we’ll use the other, is a recipe for chaos.
No, it’s not a coincidence. It’s due to those countries having higher taxation, more regulation or less legal protections for private property. Or do you seriously think it’s because they don’t let illegals invade and take advantage of birthright citizenship?
All of these contribute to those countries being poorer and stupider. Letting the stupidest among us (the nativists) drag us down with their stupid policies will bring us closer to those countries.
I’m not suggesting letting nativists drag us anywhere. I’m suggesting enforcing the law such the we have almost zero illegal immigration and closing the birthright citizenship loophole that incentivizes it.
“Ending birthright citizenship will make a meaningful dent in border crossings” is the kind of thing only a nativist could believe, and explaining the second or third order downsides to one would be as fruitful as teaching them linear algebra.
It could also be said that Most countries in the world also don’t have the first amendment protections we do. Clearly any problems that redound from that can easily be addressed the way those countries do. Except that’s not true, because in both instances the problem isn’t that chaos necessarily ensues, the problem is that it is a reduction in the basic rights we enjoy. That’s not a solution, it’s just a loss.
XXI, repeal of prohibition. Trump is a teetotaler, what does he care if the rest of us want a drink. Plus, it would really appeal to the Evangelical wing of the base, maybe as a sop to not enacting an abortion ban. As a bonus, it will give ICE something to do once they've deported everybody, and the original prohibition was at least in part an anti-immigrant policy because it was perceived that drunkenness was a scourge stemming from the then recent immigrants.
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?
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.
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.
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!
If the court rules that illegal immigrants are not subject to jurisdiction, I think that means the EO can’t be reversed. But does it also mean that trump can’t arbitrarily draw the line at Feb 25 2025? The legal ramoficationsWhy they feel they have the authority to draw that line is something I would ask them!
Yes, that was a point that I was making in a couple other responses. The way this case is framed, the administration is seeking a ruling that effectively erases birthright citizenship back all the way to the ratification of the 14th Amendment. The facial non-retroactivity of the EO is in practice a sham.
Well…upon reflection: the constitution says who *is* a citizen but doesn’t say who isn’t, so congress can (and has) passed laws granting citizenship to new groups. So the admin could say IA kids had citizenship before for non judicial reasons but they are taking that away now. So an EO could reverse it or congress could pass a law. It’s still going to be evil chaos.
Historical basis of birthright citizenship or not, one reason it’s in trouble is because the anchor baby phenomenon clearly seems like a scam and that illegal immigrants are taking advantage of gullible Americans.
arguing that the scale of the `birth tourism' phenomenon is less that 2000 babies per year. You can read it and make up your own mind, but if that is really the scale of it, then it makes sense that the government doesn't devote more resources to preventing it.
My hometown is known for Chinese birth tourism. I know it bugs some locals, but the tourists are generally wealthy people. Looking ahead 18 years, we may be really happy to have preferential access to those kids, especially before they get pulled into CCP shenanigans.
The number of children born to illegal immigrants that will then enable family migration when they become of age is in the multiple hundreds of thousands births per year.
the technical solution to that is to adjust the criteria you use to determine who to admit from a focus on family migration to a focus of skilled migration (if that is what you want to do). also, it is not the part i was addressing (i was talking about what you called `anchor babies').
isn't the technical solution just not granting a visitor's visa to someone who is coming to the us for the purpose of giving birth (if that is what you are worried about)?
I think the rule you're thinking of already exists. It's just hard to close all the loopholes, especially if they're savvy and wealthy enough to have insurance coverage.
as megan mcardle likes to say, if you catch all the fraud, then you are wasting resources. if the numbers involved are truly in the low thousands per year (i assumed it was quite a bit higher), then we may already by spending too many resources on it.
That's a decent argument for amending the Constitution. It's as shitty an argument for ignoring the plain text of the 14th Amendment as, "The Framers didn't anticipate automatic weapons" is for ignoring the plain text of the 2nd Amendment.
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).
There are a lot of legitimate things people worry about with the court. This just isn't one of them. Even the extreme conservative judges that have been considered potential Trump picks have been caught calling this obvious.
There is this very unfortunate tendency of people to split everything up into with us or against us buckets. SCOTUS justices have their own thing which is neither MAGA nor stopping MAGA. It just can seem that way since one of the conservative justices things has been returning power over the executive branch to the president despite the fact that so much of our statues over the past 50 years have been written assuming semi-indepence of senate confirmed officers. But another one of their things is reading the constitution according to the original public meaning and deciding birth-right citizenship doesn't exist would embarrass them with most of their federalist society peers. This isn't even close.
And yes, Roberts does consistently try to avoid upsetting major planks of presidential agendas on both sides through clever little procedural moves (like saving Obamacare with a taxation argument). And yes, I think this term SCOTUS has been pretty cowardly in using procedural excuses to avoid having to stand up to this administration. They don't want to be the resistance. And after pushing judicial supremacy for the last century or so and creating the expectation that SCOTUS not congress was our constitutional backstop that isn't cool.
But this isn't a case they are dodging. If they'd wanted to avoid having to rule against the Trump administration they'd have come up with an excuse to avoid having to rule on the merits. Ultimately, remember, justices are people like you or I. They are subject to bias like the rest of us and like the rest of us it is much easier to find an argument to the conclusion you like. But they are still very smart knowledgeable lawyers who are the good guys in their own minds and aren't going to reach a deciscion that would be as intellectually embarrassing as this would be. Worst case they give a really narrow deciscion that doesn't decide much of it.
(This is also why it's damn important that there aren't a bunch of automatic appointments for each president...I don't want to see 3 Eileen Cannons on the court)
While the article points to supposed practical problems with removing birthright citizenship, only one country outside the Americas offers unconditional birthright citizenship, suggesting (a) the supposed practical problems are overblown, and (b) the debate should focus more on 'who do we want to be' rather than 'would it work to change'.
I think it's a bit irresponsible to write this and not forecast the outcome.
Slow Boring understands how forecasting works and I think it would be good of you to put on paper a prediction here.
We were in Dubai. Their mix is 80% foreign/20% citizens. Thats not compatible with birthright citizenship. It appears that D’s want closer to 80/20, so they should appreciate an end to birthright citizenship.
Practically speaking, if the Supreme Court rules for the Trump administration here, they are essentially saying the plain text of the Constitution AND 125 years of precedent do not matter. Essentially, theyd overturn a key part of the 14th Amendment thru judicial review- a power that isnt actually granted in the Constitution
In effect the Supreme Court would be giving themselves a power to overturn the Constitution that is only based on precedent. Practically speaking it would be a Constitutional crisis, and should be treated as such an overreach of their power.
For people who immigrated in one of the late 19th Century waves (including many or most of my ancestors), they just came here, then they eventually went to a local courthouse, declared an intent to naturalize, later had some sort of hearing, and finally took an oath to the Constitution. Their kids may have been born before they filed their "first papers" but were automatically citizens by birthright. In the 1900 census, about 56% of the foreign born males over 21 had been naturalized and 8% had filed first papers while 21% were still "aliens" and 15% were unknown. So, between the time that the 14th Amendment was ratified and when Wong Kim Ark was decided, there were plenty of people who were born to parents who were "not lawful permanent residents" by the standards of the time and the Supreme Court would have understood that.
The thing about this case is that it calls into question in a fundamental way whether the Constitution is still the law:
- the text unambiguously supports the settled practice
- the overwhelming weight of the legal scholarship into the history (including from many conservative scholars) also supports the settled practice
- also, the practice is settled! this has been established unchallenged law since Wong Kim Ark!
I think the Supreme Court will rule against the Trump Administration (high confidence) and I don't think the Trump Administration will get more than two votes (low confidence) but if it actually goes out and rules for Trump, it would be a really devastating blow to constitutional government as such.
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.
Most countries do not confer birthright citizenship. A lot of the problems brought up in this substack are easily addressed by simply looking at how most other countries do it.
Just curious - why do you have two accounts, both with paid subscriptions?
The short answer is because I’m a careless idiot. The longer answer is that a couple of months ago I switched email accounts due to retirement. In the confusion of changing a gazillion things I added an account. The older one has actually expired but they haven’t discontinued it again.
Most other countries also use napoleonic code rather than common law. It would be fine to do things either way, but issuing an order that starting in 30 days, we’ll use the other, is a recipe for chaos.
Nah, nothing but a thing. We’re already using it down here in Louisiana, lol
These countries are also poorer and stupider than ours, it’s not a coincidence.
No, it’s not a coincidence. It’s due to those countries having higher taxation, more regulation or less legal protections for private property. Or do you seriously think it’s because they don’t let illegals invade and take advantage of birthright citizenship?
All of these contribute to those countries being poorer and stupider. Letting the stupidest among us (the nativists) drag us down with their stupid policies will bring us closer to those countries.
I’m not suggesting letting nativists drag us anywhere. I’m suggesting enforcing the law such the we have almost zero illegal immigration and closing the birthright citizenship loophole that incentivizes it.
“Ending birthright citizenship will make a meaningful dent in border crossings” is the kind of thing only a nativist could believe, and explaining the second or third order downsides to one would be as fruitful as teaching them linear algebra.
It could also be said that Most countries in the world also don’t have the first amendment protections we do. Clearly any problems that redound from that can easily be addressed the way those countries do. Except that’s not true, because in both instances the problem isn’t that chaos necessarily ensues, the problem is that it is a reduction in the basic rights we enjoy. That’s not a solution, it’s just a loss.
Ah, and there's pending legislation in Congress right now to implement such a system, is there?
Parlor game: What other Constitutional Amendments will the Trump administration “revise” despite the plain language of the text? Pick a Roman numeral!
XXI, repeal of prohibition. Trump is a teetotaler, what does he care if the rest of us want a drink. Plus, it would really appeal to the Evangelical wing of the base, maybe as a sop to not enacting an abortion ban. As a bonus, it will give ICE something to do once they've deported everybody, and the original prohibition was at least in part an anti-immigrant policy because it was perceived that drunkenness was a scourge stemming from the then recent immigrants.
Let's go after III, it doesn't get enough play.
I wasn't sure if it could apply to hotels, but at least it became a live issue recently: https://www.courthousenews.com/hotel-dispute-with-trump-administration-tests-rarely-cited-constitutional-rights/
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."
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?
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.
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!
If the court rules that illegal immigrants are not subject to jurisdiction, I think that means the EO can’t be reversed. But does it also mean that trump can’t arbitrarily draw the line at Feb 25 2025? The legal ramoficationsWhy they feel they have the authority to draw that line is something I would ask them!
Yes, that was a point that I was making in a couple other responses. The way this case is framed, the administration is seeking a ruling that effectively erases birthright citizenship back all the way to the ratification of the 14th Amendment. The facial non-retroactivity of the EO is in practice a sham.
Well…upon reflection: the constitution says who *is* a citizen but doesn’t say who isn’t, so congress can (and has) passed laws granting citizenship to new groups. So the admin could say IA kids had citizenship before for non judicial reasons but they are taking that away now. So an EO could reverse it or congress could pass a law. It’s still going to be evil chaos.
Historical basis of birthright citizenship or not, one reason it’s in trouble is because the anchor baby phenomenon clearly seems like a scam and that illegal immigrants are taking advantage of gullible Americans.
I found this https://www.niskanencenter.org/the-birth-tourism-bogeyman/
arguing that the scale of the `birth tourism' phenomenon is less that 2000 babies per year. You can read it and make up your own mind, but if that is really the scale of it, then it makes sense that the government doesn't devote more resources to preventing it.
My hometown is known for Chinese birth tourism. I know it bugs some locals, but the tourists are generally wealthy people. Looking ahead 18 years, we may be really happy to have preferential access to those kids, especially before they get pulled into CCP shenanigans.
The number of children born to illegal immigrants that will then enable family migration when they become of age is in the multiple hundreds of thousands births per year.
the technical solution to that is to adjust the criteria you use to determine who to admit from a focus on family migration to a focus of skilled migration (if that is what you want to do). also, it is not the part i was addressing (i was talking about what you called `anchor babies').
isn't the technical solution just not granting a visitor's visa to someone who is coming to the us for the purpose of giving birth (if that is what you are worried about)?
I think the rule you're thinking of already exists. It's just hard to close all the loopholes, especially if they're savvy and wealthy enough to have insurance coverage.
https://www.help.cbp.gov/s/article/Article1838?language=en_US#:~:text=Additionally%2C%20if%20you%20are%20pregnant,U.S.%20citizenship%20for%20their%20child.
as megan mcardle likes to say, if you catch all the fraud, then you are wasting resources. if the numbers involved are truly in the low thousands per year (i assumed it was quite a bit higher), then we may already by spending too many resources on it.
Yup. And sometimes the barrier is just fine, even if it only acts like a filter.
That's a decent argument for amending the Constitution. It's as shitty an argument for ignoring the plain text of the 14th Amendment as, "The Framers didn't anticipate automatic weapons" is for ignoring the plain text of the 2nd Amendment.
I think the standing army should be quartered in MAGA’s homes
If someone has a legal right to work in the US, such as an I-9 or HB1, but not permanent residency, their native born kids should still be citizens.
No. They should have the same citizenship as their parents.
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