(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584473)

https://www.oyez.org/cases/2023/22-451

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585489)

from Day One, this was understood to exclude significant categories of people who were undeniably born in the United States, and to this day those people, undeniably born in the US, do not enjoy BRC. there's no disputing that. so people who claim that BRC is simply universal have to deal with that historical intent and the history of how the exclusion has always worked.

specifically, Native Americans, children of diplomats, and children of foreign military stationed in the US are excluded even when born here. they are not "subject to the jurisdiction" within the meaning of that clause.

Peter Schuck, of YLS has written op-eds and an entire book demonstrating that the better view is that Congress has been granted multiple sets of powers to regulate this issue. i don't think Trump can do it unilaterally but it is a power of the federal government.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584744)

Op-Ed Contributor

Birthright of a Nation

By Peter H. Schuck

Aug. 13, 2010

DESPITE persistent calls for comprehensive immigration reform, the hot debate today is about an old issue: birthright citizenship.

The citizenship clause of the 14th Amendment, adopted in 1868, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...” This language has traditionally been interpreted to give automatic citizenship to anyone born on American soil, even to the children of illegal immigrants.

Congress plans to hold hearings this fall on a constitutional amendment to change that language, something even moderate Republican senators like South Carolina’s Lindsey Graham support. With a new study showing that undocumented mothers account for a disproportionate number of births, even some Democrats might find it hard to stand opposed to altering the citizenship clause.

Fortunately, the history of the clause suggests an effective, pragmatic solution that should appeal to both parties.

The clause’s purpose was to guarantee citizenship for former slaves — a right Congress had enacted in 1866 — and to overrule the infamous Dred Scott decision, which had denied blacks citizenship and helped precipitate the Civil War.

But the clause also excluded from birthright citizenship people who were not “subject to the jurisdiction thereof.” This exclusion was primarily aimed at the American-born children of American Indians and foreign diplomats and soldiers, categories governed by other sovereign entities.

The citizenship clause reflected a new American approach to political membership. Under common law dating back to the early 17th century, national allegiance had been perpetual, not consensual. Our country contested this assumption during the War of 1812 after the British impressed Americans into the Royal Navy, insisting that they remained the king’s subjects.

By 1868, Congress had come to view citizenship as a mutual relationship to which both the nation and the individual must consent. This explains why it passed — one day before the citizenship clause was ratified — the Expatriation Act, allowing Americans to shed their American or foreign citizenship.

Particularly relevant to today’s controversy was the floor debate on the citizenship clause. It suggested that the American-born children of resident aliens would indeed be citizens, a suggestion confirmed in an 1898 Supreme Court decision involving the son of a resident Chinese couple.

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Congress did not, however, discuss the status of children of illegal immigrants — at the time, federal law didn’t limit immigration, so no parents were here illegally.

Nevertheless, it is hard to believe that Congress would have surrendered the power to regulate citizenship for such a group, much less grant it automatically to people whom it might someday bar from the country. The Supreme Court has never squarely held otherwise, although it did assume, without explanation, in a brief 1982 footnote that the American-born children of illegal immigrants were constitutional citizens. This history suggests that Congress can act on birthright citizenship without a constitutional amendment.

Fast-forward to today to an America with 11 million illegal immigrants. If the Constitution permits Congress to regulate their children’s citizenship by statute, what should that statute provide?

This question is much harder than the zealots on both sides suggest. The argument against any birthright citizenship is that these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent.

In the extreme case of “anchor babies” — children born after a mother briefly crosses the border to give birth — the notion of automatic citizenship for the child strikes most people as not only anomalous but also offensive. No other developed country except Canada, which has relatively few illegal immigrants, has rules that would allow it.

At the same time, we rightly resist punishing children for their parents’ crimes. Without birthright citizenship, they could be legally stranded, perhaps even stateless, in a country where they were born and may spend their lives. And because more than a third of undocumented parents have a least one American child, ending birthright citizenship would greatly increase the number of undocumented people in the country.

Fortunately, these strongly competing values, combined with the notion of mutual-consent citizenship, suggest a solution: condition the citizenship of such children on having what international law terms a “genuine connection” to American society.

This is already a practice in some European countries, where laws requiring blood ties to existing citizens have been relaxed to give birthright citizenship to children of illegal immigrants who have lived in the country for some time — Britain, for example, requires 10 years and no long absences from the country.

Congress should do likewise, perhaps conditioning birthright citizenship on a certain number of years of education in American schools; such children could apply for citizenship at, say, age 10. The children would become citizens retroactively, regardless of their parents’ status.

Other aspects of the larger immigration debate would continue, of course. But such a principled yet pragmatic solution to the birthright citizenship question could point the way toward common ground on immigration reform.

Peter H. Schuck, a professor of law at Yale, is a co-editor of “Understanding America: The Anatomy of an Exceptional Nation.”

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584752)

Having said that, even if you accept Schuck's argument, wouldn't this still require an act of Congress? If you can change settled constitutional law via EO, what's to stop the next Democratic president from saying, "Since the 2nd Amendment refers to a 'well regulated Militia,' it is only intended to apply to law enforcement officers and the military. You have 30 days to turn in your guns before we start arresting you." I think a credible argument can be made that the 14th Amendment doesn't necessarily guarantee birthright citizenship to the children of immigrants, but I think it's much harder to argue that Trump can eliminate a century-old constitutional precedent via executive order.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585578)

ignoring the plain language of because "the drafters wouldn't have intended it to work this way in 2024", when there was no immigration policy in 1865, and we've recognized this as the law of the land for over a hundred years, is lib shit.

i don't like birthright citizenship either but this is some roe v. wade bullshit. just writing fanfiction about what people who would have thought 150 years ago to change what the law is today. you change the law by changing the law.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584784)

there's really no argument against this beyond having enough seats on the court that it's plausible they might reverse course. but that's what i mean about this being roe v wade shit. the 14th is 150 years old, born under us jx = citizen has been the law for 100 years. it's antithetical to conservative principles to let judges reinterpret a law this old just because we like the result.

i will say i won't be maf if they do do this though, because the EO at least gives some thrust to the "will of the people" here, rather than it being a minority position and the court shoving it down the people's throats.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584842)

read the Schuck op-ed. it's never been addressed.

and consider that to rule that BRC is untouchable you'd have to say that Congress itself, with all those clauses dealing with citizenship and borders, cannot do to illegal aliens what has been done for 100+ years to Native Americans, diplomats' kids, and foreign soldiers' kids. that's a big stretch.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585054)

well then this is much to do about nothing if there has never been a child granted citizenship born from illegal parents. c'mon man, of course it has.

"and consider that to rule that BRC is untouchable..."

that's not what i'm saying.

i'm saying that congress acted in the scenarios you mention and hasn't here. i said that it seems like congress could act to end BRC for illegals, as they have done with those classes, but has not.

if the 14th does not require congressional action, then why was congressional action required so those classes did not get BRC?

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585280)

as for whether the proposed exclusion requires Congressional action, i've repeatedly doubted that Trump could unilaterally do it and have repeatedly suggested that Congress can easily do so. so you and i may not be that far apart.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585810)

obviously that means that birthright citizenship isn't guaranteed by the 14th. but because those exceptions required statutes, that means that this would too, especially since it's been the law for century.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584857)

I don't think it's obvious at all. The exceptions relate to situations where the individual has been granted some special privilege by the federal gov't whereby they're not necessarily or entirely subject to fed law (diplomat, foreign military advisor, member of a recognized Indian tribe/sovereignty). So, you're not subject to fed law but you're not entitled to this particular benefit of US law. I think that interpretation makes the most sense with the language actually employed (subject to jurisdiction).

Also, BRC should be interpreted broadly given its historical purpose in preventing southern whites from disenfranchising blacks. We're dealing with virtually the same issue now (red state whites behaving badly).

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585033)

children from hostile occupiers are not citizens. this is much more analogous than former slaves, and probably the best argument for 14A not guaranteeing BRC on it's face.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585294)

(1) makes non-citizens the children of non-immigrant visa holders abiding by the terms of their visa,

(2) but would make citizens the children of illegal immigrants and overstays/condition violators,

because the latter classification is closer to the status of resident aliens at the time the 14th Amendment was promulgated: people who have chosen to stay and make the country their home.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48590195)

I have not seen much scholarship on the meaning of jurisdiction in context.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48584856)

if birthright citizenship had not already been decided, then it wouldn't be such a political issue. of course it was decided. right at the time we started creating immigration laws and the entire concept of illegal immigrant was created.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48585618)

If you decide to stay in the U.S. indefinitely without status, then you can be deported at any time if they catch you. If you have a child that is a U.S. citizen, you can use that as an argument that you shouldn't be deported, but it's hardly a get out of jail free card. You have to argue that your U.S. citizen child needs some type of medical treatment that isn't available in your home country or something like that; you can't just say, "You can't deport me because my baby is a citizen and this is the only country she has ever known." Even then it's up to the discretion of the judge.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48586117)

===

MARGARET BRENNAN: A federal judge, appointed by Ronald Reagan, who I think you'd agree, has some conservative credentials... paused the order to end birthright citizenship, calling it "blatantly unconstitutional." How do you reconcile this challenge to the 14th Amendment to the Constitution?

VICE PRESIDENT VANCE: So, I obviously disagree with that judge and these things — some of them will be litigated. That's the nature of our constitutional system. But here's the basic idea of President Trump's view on this. If you are a lawful permanent resident or a legal immigrant who plans to stay, your children, of course, should become American citizens. But let's say you're the child of an ambassador, you don't become —

MARGARET BRENNAN: — but that's not part of it.

VICE PRESIDENT VANCE: Well, that's an important principle —

MARGARET BRENNAN: — there's already a carveout having to do with kids of diplomats.

VICE PRESIDENT VANCE: But we're saying that that carve out should apply to anybody who doesn't plan to stay here. If you come here on vacation and you have a baby in an American hospital, that baby doesn't become an American citizen. If you're an illegal alien and you come here temporarily, hopefully, your child does not become an ille- American citizen by virtue of just having been born on American soil. It's a very basic principle in American immigration law, that if you want to become an American citizen, and you've done it the right way, and the American people in their collective wisdom have welcomed you into our national community, then you become a citizen. But temporary residents, people who come in here, whether legally or illegally, and don't plan to stay, their children shouldn't become American citizens. I don't know any country that does that, or why we would be different.

MARGARET BRENNAN: Well, this is a country founded by immigrants.

VICE PRESIDENT VANCE: Well, this is a country founded by —

MARGARET BRENNAN: — This is a unique country.

VICE PRESIDENT VANCE: This is a very unique country, and it was founded by some immigrants and some settlers. But just because we were founded by immigrants, doesn't mean that 240 years later that we have to have the dumbest immigration policy in the world. No country says that temporary visitors- their children will be given complete access to the benefits and blessings of American citizenship. America should actually look out for the interests of our citizens first, and that means, again, if you're here permanently and lawfully, your kid becomes an American citizen. If you're not here permanently, if you're not subject to the jurisdiction of the United States —

MARGARET BRENNAN: Yeah —

VICE PRESIDENT VANCE: — and don't plan to be, why would we make those people's children American citizens permanently?

***

Brennan's "that's not part of it" and "there's already a carveout" did not advance her argument but only showed her failure to understand — or refusal to hear out — Vance's argument. Once you acknowledge that carveout, you should see that we haven't been following the literal text. Not that they ever got to the literal constitutional text. It devolved into the question of who we think ought to have birthright citizenship. And Vance dominated. But I don't think Brennan would have done better to stand on textualism. You could see where that argument would go. Vance was prepared to discuss all aspects of the question calmly and intelligently, but Brennan just seemed to want to get him on one thing or another. And all her attacks failed.

https://althouse.blogspot.com/2025/01/jd-vance-on-face-nation.html

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48594360)

they get a talking point that they believe and feel like they can debate instead of interview despite not being skilled debaters

95+% are libs, but this was also doocey

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48598969)

====

https://www.civitasinstitute.org/research/the-case-against-birthright-citizenship

Trump’s executive order stands on a firmer footing than its vocal critics acknowledge.

‍

One of Trump’s most daring executive now declares that citizenship rights should be denied to children whose mother under current was “unlawfully present in the United States” or whose presence in the United States was “lawful but temporary,” but only if that person’s father “was not a United States citizen or lawful permanent resident at the time of said person’s birth.” That general command was subject to two key qualifications. The first is that it did not take effect until 30 days after the order, which grandfathered out of the E.O. all individuals who became birthright citizens as the children of both illegal aliens and sojourners into the U.S. The E.O. rightly did nothing to undo the current status whereby the children of lawful permanent residents were entitled to obtain the documents needed to certify their citizenship.

As a matter of first principle, it is hard to think of any good reason why legal and illegal conduct should be treated identically. A person who kills without justification or excuse is a murderer, who is properly treated quite differently from someone who kills in self-defense. Indeed, the entire civil and criminal law is organized to suppress illegal conduct and to support legal conduct. But the opposite is true with birthright citizenship, which gives a strong spur for illegal conduct. Therefore, to the uninitiated, it should come as a surprise that the dominant view in the United States, ably expressed by, now a Fifth Circuit Court judge is that the history and text of the Fourteenth Amendment require the constitutional protection of birthright citizenship, by arguments from text and history, without asking about the undesirable incentive structures created by these rules. Indeed, that position is so engrained in American legal culture that federal court Judge and Reagan appointee John Coughenour, in a short written in response to a filed by the states of Washington, Arizona, Illinois, and Oregon, held that there was a “strong likelihood” that the plaintiffs would win on the merits, citing, without analysis, US v. Wong as his key legal authority (1898).

It turns out that he should have looked closer because that decision at no point addressed, either explicitly—the word “illegal” is not used in the opinion—or implicitly, the legal status of the children born in the United States of illegal aliens. Rather, that case dealt explicitly with the common situation where the plaintiff was the child of lawful permanent aliens in the United States who had long engaged in a lawful business and were denied the right to become citizens under the Chinese Exclusion statute. The gist of Justice Horace Gray’s opinion was that their son could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country. There has been no serious discussion in the judicial and academic literature supporting citizenship for illegal aliens that addresses the obvious perverse incentives of encouraging illegal immigration by allowing the parents to have their new-born children profit from these parental wrongs. The same argument applies to children whose mothers come late in pregnancy (often called, disparagingly, anchor babies), to the United States for the sole purpose of taking advantage of birthright citizens.

On the historical front, there were no restrictions on immigration prior to the Civil War so there is no body of law that deals with it. But the problem of the sojourner had to come up frequently, and there is no record of any parent claiming that their children born in the United States were citizens, so on one half the problem, the historical record is clearly against the claim. And as illegality is, if anything, a more serious offense, it seems clear that if that problem had arisen, there is no reason to think that citizenship would have been granted.

Yet given the weak historical record, the overall understanding of Wong Kim Ark depends heavily on the key text of the Citizenship Clause of the Fourteenth Amendment: "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."

That language comes hard on the heels of the of Civil Rights Act of 1866 which opens with this declaration:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery . . .

The 1866 Act thus includes foreigners on the list of persons, along with Indians not taxed. Diplomats are on that list. The Fourteenth Amendment contains no enumeration of excluded parties but does contain the phrase “subject to the jurisdiction thereof” that points to a set of unenumerated exclusions. It is widely agreed that this phrase includes diplomats and their families who owe loyalty to their sovereign. But if that were the only class of cases covered, the exception to citizenship language could have been explicit. And it would be odd in the extreme if there were any reversal on foreigners, especially illegal aliens and sojourners, without some explicit notice of the point. Yet the early case law speaks to these issues against the claim of birthright citizenship. Thus, from the outset, it has never been disputed that members of the Indian tribes within the United States did not obtain citizenship of this clause. Thus, Elk v. Wilkins (1884) held that the Indian plaintiff was not an American citizen because the Citizenship Clause required that he had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” Thereafter, it took the Citizens Act of 1924 to make by statute members of Indian tribes citizens of the United States. Members of Indian tribes occupy a complex position under American law, which followed, according to Elk that “an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.” And the same position had also been taken in the well-known Slaughter House Cases (1872). Speaking about the Citizenship Clause in the wake of Dred Scott (1857), they wrote: “That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Both cases were cited and distinguished in Wong Kim Ark, which is no surprise since the same Supreme Court Justice, Horace Gray, wrote both Elk and Wong Kim Ark.

At this point, one key analysis turns on the history surrounding using the term citizenship before adopting the Fourteenth Amendment. That term is used in the original Constitution without any explicit definition, so at this, it is widely agreed that the analysis turns on the standard use of that term in the United States and elsewhere, including the English common law. That issue received extensive discussion in Minor v. Happersett (1875), where the legal question presented was whether women could be citizens of the United States, which held that “it did not need this amendment to give them that position.” It then concluded on the specific question that citizenship was a matter for states to determine and that, historically, it was common for states to restrict voting rights to male citizenship, a point that was echoed in Section 2 of the Fourteenth Amendment, which refers to “male inhabitants” in dealing with the new rules for the apportionment of representatives in the United States.

Minor also included an extensive general discussion of how any person, male or female, natural or naturalized, acquired the attributes of citizens from the time of the initial ratification in 1787 ratification. It then allegiance and protection are, in this connection, reciprocal obligations.” Neither part of this equation applies to either illegal aliens or to sojourners, so it is no surprise that neither group forms any part of the discussion in Minor, which frames, as I have long argued, the meaning of the term “citizen” as it is used in the first two clauses of Section 1 of the Fourteenth Amendment that draws an explicit distinction between citizens and persons, noting that only citizens are entitled to the greater protection of privileges and immunities, which include the right to enter any occupation and to own property, in contrast to the basic rights afforded to all persons namely, to avoid arbitrary loss of life, liberty or property, or be subject to the unequal protection of the laws. The second set of constitutional protections must be given to illegal aliens and sojourners, while the privileges and immunities clause does not. Nor should any of this come as a surprise because the international backdrop to the Constitution, which was far more in the period just after the Civil War, contained many maxims of justice, including, “out of dishonorable cause, no action arises”, covers the case where any person uses his or her illegal act to advance the position of his child. No one at the time or now has advanced a coherent explanation as to why birthright citizenship is desirable as a matter of principle. So why assume that it was adopted silently through the back door? Judge Coughenour and the many other judges and justices who will be asked to review this critical issue have their work cut out to confront the many textual and historical challenges to the birthright citizenship claim.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48597854)

Allegiances have nothing to do with BRC. The framers of the citizenship clause specifically wanted it to be as broad as possible because they knew the shenanigans southern states would pull if it weren't spelled out in the Constitution ("You ain't a citizen unless your grand-pappy was a citizen and you pledged allegiance to the Confederacy!"). The whole point was to take it away from the states and remove any potential BS barrier that future state and fed governments would concoct to deem blacks as non-citizens. Did it end up having unintended consequences? Sure. The "subject to jurisdiction" is also very clear reference to native americans (and diplomats too but that was a much more minor issue). The treatment of the tribes as a foreign entity was a huge deal back then given the treaties that the US operated under. They did not want to upset that delicate balance.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48598072)

====

but it cannot apply to someone who flies to LA to give birth? what if Congress says it does?

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48598091)

it's amazing to see xo suddenly turn into advocates for a living breathing constitution when it suits them.

(http://www.autoadmit.com/thread.php?thread_id=5669150&forum_id=2#48601774)