Executive Order to end Birthright Citizenship

[_EAllusion]

If this is based on Trump's interview, he makes ____ up all the time on the fly. He's very good at it. He's got a track record of claiming people have told him various that they deny ever saying. I think his "now they're telling me" that he can do it with an executive order is just another example in a long line of making stuff up on the fly.

If someone at the OLC has spoken out on this, I'd love to hear it.

That's a possibility, but it's also possible that he's getting advice inside his administration given 1) the view he is promoting is an esoteric topic and 2) he's obviously got a bunch of extremist cranks on immigration in his administration. Ya never know with Trump.

[_EAllusion]

https://Twitter.com/NBCNews/status/1057447079717601280

Lol. Good god. More of the liberal media, I suppose.

The author of this piece is out there defending himself saying it was his duty to explain "both sides" of the debate. Just amazing. I believe Southpaw pointed out one of the implications of how this is written is that educators out there are misleading students by having them accept a straightforward factual issue because they aren't teaching it as a both-sides debate with crackpots.

[_Water Dog]

Opinions worth adding to the discussion.

McCarthy agrees with Trump that 14A does not grant birthright citizenship. However, he disagrees with using an executive order to send the question to Supreme Court. Reviewing all these different arguments, when it comes to the procedural question of how best to present this to Supreme Court, I'm way out of my depth. It would seem that if it comes in the form of an executive order, that executive order could be struck down simply because it's outside the jurisdiction of an executive order, but without actually addressing the question at hand. In which case we end up right back where are now, nothing has changed.

Interestingly, McCarthy argues that section 1401 of federal statute actually supports the position that 14A does not grant birthright citizenship by virtue of the fact that Congress is in a sense asserting authority in the matter. Either that or they are superfluously re-stating something that doesn't need to be restated and the presence of the statute is utterly meaningless. Either way, the statute offers no interpretation, much less an authoritative one, of the constitutional language.

For this reason, some are saying that an executive order would be very effective. That it would depend on the nature of the executive order. If it merely instructs agencies to stop doing something Congress hasn’t granted them authority to do in the first place, it sets the stage for a different kind of debate. Nowhere in the federal statute has Congress ordered the Executive to grant birthright citizenship to illegal aliens. So likely what will happen is the executive order will state that previous administrations starting back in the 1960s or whenever, have been misapplying the law and acting outside Congressional authority.

Is there any precedence for anything like this? Has there ever been an executive order issued that essentially states, "Congress has authority in this matter, and Congress has issued a vague law that we don't know how to enforce?" or "Such and such law has been incorrectly enforced and we're correcting the situation."

It's essentially an invitation to Congress to fix the statute. And that is then an invitation for Supreme Court to weigh in on whether Congress' statute is unconstitutional. The thing is, Congress CAN grant citizenship to illegal aliens if it so chooses. But that's different than the constitution mandating that it do so. The only way for Supreme Court to address whether 14A mandates such an interpretation is to stop interpreting it that way and see what they do.

https://www.nationalreview.com/corner/d ... ive-order/


Mark Levin disagrees with Paul Ryan. Levin is a credible guy. Outside the procedural questions, and legal precedence questions, I'm not sure how anybody can honestly argue that the original intent of 14A was to grant citizenship to illegals. That seems a very gross and dishonest spin of reality.

Paul Ryan has no idea what he's talking about. Today he said: "We, House Republicans and this President, are in total agreement on the need to stop illegal immigration. To secure our border and fix our laws," Ryan said. "I think the smarter, faster solution here is to crack down on illegal immigration and we obviously support doing that. But, I'm a believer in the Constitution, I believe in interpreting the Constitution as it's written, and that means you can't do something like this via executive order."

Not until the 1960's has the Constitution been interpreted to convey birthright citizenship on the children of illegal aliens. And not due to any congressional statute or court ruling, but decisions by various departments and agencies of the federal bureaucracy. So, to be clear, the president would not be altering the 14th amendment or the intent of the 14th amendment or the original interpretation of the 14th amendment. On the contrary, the president would be taking charge of the executive branch and upholding the 14th amendment. And I challenge Paul Ryan to demonstrate otherwise. That's not to say that activist judges and courts might not embrace Ryan's knee-jerk position, but the president is right.

Levin replayed a clip from his show in 2015, in which he laid out the stated purpose of the 14th Amendment and read Senator Jacob Howard’s explanation.

“‘This will not of course include persons born in the United States who are foreigners, aliens … but will include every other class of persons. It settles the great question of citizenship.’ … Is it not plain English? Is he not as clear as can be that it does not include aliens, it does not include foreigners. … The republican basis for citizenship is consent! Consent of the country! You can’t self-immigrate. You can’t claim jurisdiction because you happen to walk into the United States.”

“What is the bottom line here? Let’s number this: They wanted to make certain that former slaves would be treated as citizens of the United States, because certain states were still resistant. … They exempted Indians, because Indians still, certainly back then, were often considered citizens of particular tribes. But these actually were very forward-looking individuals. They specifically excluded aliens and foreigners.”

https://www.conservativereview.com/news ... heres-how/

[_subgenius]

There’s no serious question whether the Constitution requires birthright citizenship,...

This is an opinion that your are presenting as factual. President Andrew Johnson and Congress debated this very issue without resolve, and the "fact" is that Supreme Court has never ruled on the particular phrase in question - especially inasmuch as it was written to purposely exclude native Americans from citizenship since they were, in fact, within the US border but were no "subject to" the US - so yeah, a serious question still remains and it is about birthright citizenship being extended to illegal immigrants.......but don't let pesky facts get in the way of what you are trying to argue.

[_EAllusion]

Levin replayed a clip from his show in 2015, in which he laid out the stated purpose of the 14th Amendment and read Senator Jacob Howard’s explanation.

“‘This will not of course include persons born in the United States who are foreigners, aliens … but will include every other class of persons. It settles the great question of citizenship.’ … Is it not plain English? Is he not as clear as can be that it does not include aliens, it does not include foreigners. … The republican basis for citizenship is consent! Consent of the country! You can’t self-immigrate. You can’t claim jurisdiction because you happen to walk into the United States.”

“What is the bottom line here? Let’s number this: They wanted to make certain that former slaves would be treated as citizens of the United States, because certain states were still resistant. … They exempted Indians, because Indians still, certainly back then, were often considered citizens of particular tribes. But these actually were very forward-looking individuals. They specifically excluded aliens and foreigners.”

Oh my god dude.

That quote is one of the more egregious quotemines I've seen in a while. The full Howard quote is:

This amendment
which I have offered is simply declaratory
of what I regard as the law of the
land already, that every person born
within the limits of the United States,
and subject to their jurisdiction, is by
virtue of natural law and national law
a citizen of the United States. This will
not, of course, include persons born in the
United States who are foreigners, aliens,
who belong to the families of ambassadors
or foreign ministers accredited to the Government
of the United States, but will include
every other class of persons.”

https://www.gibsondunn.com/wp-content/u ... erican.pdf

By chopping out the relevant phrase, this completely changes the meaning to the opposite of what is actually stated. Howard argues here that it includes everyone but foreigners who are sons and daughters of diplomats.

[_Water Dog]

If this is based on Trump's interview, he makes crap up all the time on the fly. He's very good at it.

Do you live in the twilight zone? This is an insane tin foil interpretation. How could Trump have made it up? He didn't even bring it up, the interviewer did. Are you suggesting a conspiracy theory, that this journalist and Trump were in cahoots and that the interview was staged theater? The interviewer also stated that he has been working on the story for some time and that his understanding was based on White House sources. Trump then responded with surprise. ROFL. This is why these discussions are such a waste of time. You either didn't watch the interview and are just running your mouth or you live in fantasy land. Trump's executive order, if it happens, may go down in flames. And your interpretation of it being an off-the-cuff midterm stunt will still be embarrassingly dumb either way.

[_subgenius]

That case doesn't disagree with Res Ipsa and textbooks. The nutbar theory you are relying tries to note that the case dealt with a legal immigrant rather than a illegal one to infer that illegal immigration is still on the table.

For that, there's this case: https://supreme.justia.com/cases/federal/us/457/202/

The Court rejected the argument you are making here 9-0.

But you don't need to reach to the authority of Supreme Court interpretation here as it's about as straightfoward of an issue as it gets. We do not lack quotes from the amendments authors, proponents and opponents about what they thought the text meant. We don't lack for traditional public understanding of the amendment. The amendment has a plain English meaning that is coherent to those stated aims.

Wow, a 5-4 decision on the equal protection clause within the 14th is not the same as the citizenship clause...but keep spanking it my friend. Extending protection under the law is not the same as granting citizenship...but you already knew that.
Again, the inference is actually on the table - it really is.

[_EAllusion]

This is an opinion that your are presenting as factual. President Andrew Johnson and Congress debated this very issue without resolve

They passed the amendment. Its critics argued that it would mean the children of undesirables such as gypsies would be US citizens and its proponents agreed.

, and the "fact" is that Supreme Court has never ruled on the particular phrase in question - especially inasmuch as it was written to purposely exclude native Americans from citizenship since they were, in fact, within the US border but were no "subject to" the US - so yeah, a serious question still remains and it is about birthright citizenship being extended to illegal immigrants.......but don't let pesky facts get in the way of what you are trying to argue.

[/quote]

I linked you a 5-4 Supreme Court decision where all 9 justices agreed that undocumented immigrants in this country are subject to its jurisdiction in direct contradiction to the argument you are making that the state of Texas tried out.

[_Water Dog]

That quote is one of the more egregious quotemines I've seen in a while. The full Howard quote is:

This amendment
which I have offered is simply declaratory
of what I regard as the law of the
land already, that every person born
within the limits of the United States,
and subject to their jurisdiction, is by
virtue of natural law and national law
a citizen of the United States. This will
not, of course, include persons born in the
United States who are foreigners, aliens,
who belong to the families of ambassadors
or foreign ministers accredited to the Government
of the United States, but will include
every other class of persons.”

https://www.gibsondunn.com/wp-content/u ... erican.pdf

By chopping out the relevant phrase, this completely changes the meaning to the opposite of what is actually stated. Howard argues here that it includes everyone but foreigners who are sons and daughters of diplomats.

A valid point, if true. Reading the full quote I see what you mean, but also don't. We need more contextual material. I'm reading it to mean, "foreigners, aliens, or who belong to the families of ambassadors..." You are stating that "families of ambassadors..." is a description of what is meant by "foreigners, aliens" but it doesn't read that way to me.

[_EAllusion]

Wow, a 5-4 decision on the equal protection clause within the 14th is not the same as the citizenship clause...but keep spanking it my friend. Extending protection under the law is not the same as granting citizenship...but you already knew that.
Again, the inference is actually on the table - it really is.

You didn't read this at all, did you?

The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.

The dissent, meaning everyone, agreed with the bolded portion.