Did he really say that?

It’s hard to keep up with the President’s logic, but this has me especially confused:

President Trump on Wednesday again sought to turn the nation’s attention to his hard-line stance on immigration ahead of next week’s midterm elections, claiming that birthright citizenship is not covered by the U.S. Constitution and vowing the issue will ultimately be settled by the Supreme Court.

“So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other,” Trump tweeted.

The concept of birthright citizenship, which grants citizenship to everyone born in the United States, is guaranteed by the 14th Amendment to the Constitution. It reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” . . .

“It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof,’” the president said, adding that “many legal scholars agree” with him. Most legal experts disagree, interpreting the clause narrowly, to exclude, for example, the families of foreign diplomats residing in the United States.

Is the President saying that children born in the US to non-residents are not subject to the jurisdiction of the US?  If not, what is he saying?  And if the answer is yes, isn’t that pretty shocking?  Do these kids really have immunity to our laws?  I know, we are long past being shocked . . . but still.

BTW, have you noticed how conservatives interpret the Constitution:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

Both really confusing. Right?

I’m sure we can trust Brett Kavanaugh to figure it all out.


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70 Responses to “Did he really say that?”

  1. Gravatar of E. Harding E. Harding
    31. October 2018 at 12:31

    The important thing is that birthright citizenship is a travesty, opposed by literally every sensible person other than, perhaps, Bryan Caplan, and must be swiftly abolished by any means necessary. The specifics are a tad like the justification for Roe v. Wade; basically unimportant.

  2. Gravatar of Christian List Christian List
    31. October 2018 at 13:54

    Unrestricted Jus soli is unusual. It seems to be an American specialty in the sense that it’s mostly know in nations of North and South America.

    This seems to have historical reasons. Illegal immigration to America, from other continents, seems hardly possible due to the oceans. The situation has changed in so far, as there seems to be a lot of migratory pressure within the Americas during the last decades.

    So it seems likely that unrestricted Jus soli will fall in the future in the Americas as well. Wealthy nations (relatively to their neighbors) with the most illegal immigrants will be the first. Probably the US and Brazil will lead the way. Then maybe Mexico. Canada won’t repeal it because they basically have no illegal immigration.

    The mechanisms of migration pressure helps to explain the whole political landscape by the way, especially politicians like Trump, Bolsonaro, and Trudeau. TDS makes some people forget that there are way bigger forces at play. Don’t forget that Trump is just a symptom, an end result of the forces at play.

  3. Gravatar of David R. Henderson David R. Henderson
    31. October 2018 at 14:05

    Scott,
    You write, “I’m sure we can trust Brett Kavanaugh to figure it all out.”
    I know you’re being sarcastic, but in this case the sarcasm doesn’t work. I’m confident that if Trump tries to undercut birthright citizenship, by executive order or by legislation that gets passed, the Supreme Court will reject it by a 9-0 vote. I’m willing to bet on that.

  4. Gravatar of Matthew Waters Matthew Waters
    31. October 2018 at 14:21

    The US would need a constitutional amendment. SC was unaminous in applying “jurisdiction” to illegal immigrants, which is also the plaintext and obvious reading. Children of illegal immigrants are under US law the moment they are born.

    If you were honestly get rid of birthright citizenship, then I would be deported to Ireland. Nobody in my patrilineal line naturalized before the next descendent was born. My great-grandfather was the first citizen with a likely forged birth certificate.

  5. Gravatar of ssumner ssumner
    31. October 2018 at 15:08

    Christian, So are you predicting a Constitutional amendment?

    David, You are probably right. I was mocking the idea that “conservatives” (like Trump) believe in the Constitution. But no one has addressed the point of my post—Does Trump actually believe that illegal aliens are not under our jurisdiction? Wouldn’t it be nice to not have to pay parking tickets?

  6. Gravatar of Christian List Christian List
    31. October 2018 at 16:20

    Scott,

    David, You are probably right. I was mocking the idea that “conservatives” (like Trump) believe in the Constitution.

    Constitutions are similar to religious texts. Everyone can read into it what they want. Conservatives have their interpretations, leftists have theirs, and libertarians have theirs. There are nearly as many interpretations as there are people, maybe even more. If you think differently about it, you are a bit too delusional and/or naïve.

    Christian, So are you predicting a Constitutional amendment?

    The research on this was surprisingly easy if you do not just consult one-sided sources like the notorious NYT.

    The reality goes like this:

    So far there’s no need for a Constitutional amendment. The President makes an executive order. This executive order gets challenged, and so the issue would ultimately be made by the courts, eventually the Supreme Court.

    Furthermore, it can be argued that there was never a final interpretation by the Supreme Court what parts of the Fourteenth Amendment really mean. There was only a footnote in Plyer vs. Doe, a very close 5-4 decision by the way.

    As soon as the issue is at the Supreme Court the outcome is hard to predict. Trump would need a 5-4 vote which is difficult but hardly as impossible as David seems to imply.

    9-0?! David, are you serious? When was the last 9-0 decision? This is just extreme wishful thinking from your side. Please, do not make relevant bets of this kind unless you want to lose a lot if money.

  7. Gravatar of Christian List Christian List
    31. October 2018 at 16:54

    Scott,

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

    From a logical point of view this text has two requirements for citizenship — that an individual is born on U.S. soil; and that an individual is subject to the jurisdiction of the United States when born.

    The “birth on U.S. soil” clause alone can hardly be sufficient otherwise the “subject to the jurisdiction” clause would be meaningless.

    Matthew,

    If you were honestly get rid of birthright citizenship, then I would be deported to Ireland.

    Do you know what a Grandfather clause is? I’m sure you do.

    How come there are no mass deportations in countries without unrestricted Jus soli? Oh right, residence permit and citizenship are not the same thing.

    No wonder Trump is winning so often if the contra arguments look like this.

    which is also the plaintext and obvious reading.

    There’s never an “obvious” reading of the Constitution.

    The other side says the background and idea of the 14th Amendment was to grant citizenship to recently freed slaves. This argument may very well appeal to certain judges who want to interpret the Constitution as it was historically intended.

    The other side also says that when the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that ‘subject to the jurisdiction’ of the United States meant not ‘owing allegiance to anybody else.’ The other side says that this also precludes granting birthright citizenship to the children of illegal immigrants.

    See also what I wrote to Scott.

    That was actually a guest post in the notorious NYT a few years ago, back then when times were less bipartisan and less divided (?).

    https://www.nytimes.com/roomfordebate/2015/08/24/should-birthright-citizenship-be-abolished/birthright-citizenship-is-not-actually-in-the-constitution

  8. Gravatar of mbka mbka
    31. October 2018 at 20:34

    Christian List,

    “The “birth on U.S. soil” clause alone can hardly be sufficient otherwise the “subject to the jurisdiction” clause would be meaningless.”

    The jurisdiction clause was apparently meant to exclude children of foreign diplomats.

    As Scott said, it would be pretty absurd to suggest that the US has no jurisdiction over illegal immigrants. It’s precisely the US jurisdiction that calls them “illegal”, ipso facto claiming jurisdiction over them.

  9. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    31. October 2018 at 21:18

    As usual, Trump is correct (and his critics are simple-mindedly wrong). The 14th amendment is one of three post Civil War amendments designed to give full civil rights to freed slaves. For instance, it did not apply to American Indians who were members of tribes with treaties establishing them as independent nations. Those Indians were not allowed to register to vote in the USA until a 1924 Act gave it to them.

    So, if Indians were always ‘subject to the jurisdiction’ of the U.S. if they, say, robbed a bank outside their reservation. Didn’t that also make them citizens (like the freed slaves)? Then why did it take the 1924 Act to make them citizens and voters?

    Further, Richard Posner of the 7th Circuit Court of Appeals ridiculed the concept of birthright citizenship in a 2003 concurrence in which he stated that congress could repeal it without a constitutional amendment. Because, birthright citizenship was made up by William Brennan in Plyler v Doe, 1982.

    So, David Henderson, I hereby accept: ‘I’m confident that if Trump tries to undercut birthright citizenship, by executive order or by legislation that gets passed, the Supreme Court will reject it by a 9-0 vote. I’m willing to bet on that.’

    How much money ya got?

  10. Gravatar of Scott N Scott N
    1. November 2018 at 05:17

    “and subject to the jurisdiction thereof”

    The background of the 14th amendment is that it was intended to provide full citizenship rights for freed slaves. This clause was used to distinguish between freed slaves who were not citizens of any other country-i.e., were not subject to the jurisdiction of another country-and other people who were citizens of other countries-i.e., were subject to the jurisdiction of another country. This statement doesn’t refer to the fact that people living in the U.S. are subject to its jurisdiction in the sense that they must obey the law, etc.

    At least that’s the argument. And, from what I’ve read, there are statements from members of Congress at the time the 14th amendment was passed expressing this understanding.

    The Supreme Court has not decided this specific issue-i.e., whether the child of an illegal immigrant from another country are automatically citizens. There is some Supreme Court precedent that supports this idea, but will the current court follow precedent or an originalist understanding of what Congress meant when it passed the amendment? Probably the latter, but who knows.

    Reddit has a pretty good discussion of the issue. https://www.reddit.com/r/NeutralPolitics/comments/9so4si/what_is_birthright_citizenship_what_are_the_pros/

  11. Gravatar of mbka mbka
    1. November 2018 at 05:18

    Patrick,

    the more interesting point isn’t so much the legalese (though the exclusion of Indian Nations and children of diplomats is in line with the idea of what is territory of the US and what is not).

    The interesting point is that Trump’s method is to debase any value he can find. No respect for truth, people of any kind, established codes of behavior, law, constitution. Nothing matters to the boor in his quest for maximum hurt, meanness, and pettiness. He always finds a maximally divisive issue and hammers it in. The latest post on Slatestarcodex btw has a really nice parable about this in “Sort by controversial”. He is one of the most destructive “personalities” I have ever heard of. He debases everything he touches or talks about. He certainly debased the US, actually no, the entire West, and by extension, all “white people”, in the eyes of pretty much everyone else on this planet.

    Right now, the US has about zero appeal world wide, and can export about zero values to anywhere – thanks to this scorched earth policy on values. There will likely be a positive side effect to this, at least for Trump supporters: pretty soon there won’t be much of an immigration problem anymore to the US, the same way as no one really wants to immigrate into Russia either.

  12. Gravatar of Brian Donohue Brian Donohue
    1. November 2018 at 06:50

    Scott, I think you are trying to make a narrow and quibbling point. Your mistake is getting sucked into the conversation in the first place. This is pure politics, and Trump has this uncanny knack for knowing how to push buttons to his advantage. Don’t play into his hands like this.

  13. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    1. November 2018 at 07:10

    ‘The interesting point is that Trump’s method is to debase any value he can find. No respect for truth, people of any kind, established codes of behavior, law, constitution.’

    When was The Money Illusion declared a Self-Awareness Free Zone?

  14. Gravatar of Matthew Waters Matthew Waters
    1. November 2018 at 07:49

    Christian, is your argument that Wong Kim Ark was wrongly decided?

    By the way, the drafter of the amendment and President Johnson said that the clause gave citizenship to children of foreigners, except foreign ambassadors. The “originalist” distinction was about whether laws applied at birth.

    An Indian was born into a parallel set of laws. They could leave their nation and commit a crime under US law. But they were not *born* under US law. If I go to Canada, rob a bank and go to Canadian jail, I was still not born under Canadian jurisdiction.

    Is your argument that Wong Kim Ark was rightly decided but it does not apply to illegal immigrants? The category of illegal immigrants did not exist in the 1860’s. It’s really stretching “originalist” ideas to read a distinction which did not exist at drafting.

  15. Gravatar of ssumner ssumner
    1. November 2018 at 07:56

    Christian: You asked:

    “When was the last 9-0 decision?”

    Sometime you leave me breathless.

    Patrick, LOL. I presume your logic also applies to the 2nd Amendment?

    Everyone, I love how people who claim to revere the Constitution, and our founding fathers, also think the Constitution was written by idiots who had no ability to clearly explain even the most simple point, like whether people born here are citizens, or whether people have the right to bear arms. Written by people who literally don’t know how to write.

  16. Gravatar of ssumner ssumner
    1. November 2018 at 08:00

    Matthew, Good comment. I’d add that while immigrants can be illegal, the children born to illegals are not illegal immigrants, indeed they have broken no laws at all. They have not illegally crossed any borders. They are not criminals. They are American born, just like Donald Trump.

  17. Gravatar of Matthew Waters Matthew Waters
    1. November 2018 at 08:03

    Patrick,

    The idea of birthright citizenship was given by the drafter of the amendment, with exceptions of Indians and foreign diplomats. The SC decided it in US v Wong Kim Ark.

    Posner is, well, cantankerous to put it lightly. His 2003 opinion is kind of unhinged. But even there, he was equivocal about whether an amendment was required. He said “Congress should pass a law ending birthright citizenship,” but he only says an amendment “may not” be required. Apparently he just wanted a gesture from Congress if nothing else.

  18. Gravatar of ssumner ssumner
    1. November 2018 at 08:31

    Brian, You said:

    “getting sucked into the conversation”

    I’m not sure that’s the correct term for what I’m doing here, which is trying to make a joke.

  19. Gravatar of Brian Donohue Brian Donohue
    1. November 2018 at 08:45

    Scott, giving this conversation oxygen, even as a joke, is exactly what Trump wants. I don’t think Trump supporters are galvanized by Trump’s running his mouth so much as by the knee-jerk reaction he invariably triggers.

    It’s like a kid running for high school student council promising no homework and shorter classes. Imagine teachers getting all worked up and spluttering about how “that’s just not possible”. Wrong tack.

  20. Gravatar of Tom Brown Tom Brown
    1. November 2018 at 12:50

    Haha… bringing up the 2nd Amendment is basically the first thing I did as well. Let’s revisit “well regulated militia” if we’re going to revisit amendments.

    Good post.

  21. Gravatar of E. Harding E. Harding
    1. November 2018 at 13:23

    “also think the Constitution was written by idiots who had no ability to clearly explain even the most simple point, like whether people born here are citizens, or whether people have the right to bear arms”

    The ratification of the Reconstruction Amendments was blatantly unconstitutional. But who cares? The Constitution is a piece of toilet paper.

    “the children born to illegals are not illegal immigrants, indeed they have broken no laws at all”

    Yes, they are, and yes, they have.

    “He certainly debased the US, actually no, the entire West, and by extension, all “white people”, in the eyes of pretty much everyone else on this planet.”

    Pfew lads.

    “the US has about zero appeal world wide”

    Except in literally every part of the world, including North Korea. American global brands still sell.

    “no one really wants to immigrate into Russia either.”

    It’s literally the second largest immigrant destination in the world, and that has become more so the case since the war in Donbass. mbka, how often does reality have to contradict your fantasies throughout your life?

  22. Gravatar of Greg DeLassus Greg DeLassus
    1. November 2018 at 13:30

    “When was the last 9-0 decision?”

    28 June 2018, Sause v. Bauer (URL below). This has been another episode of “easy answers to foolish rhetorical questions.”

    https://www.supremecourt.gov/opinions/17pdf/17-742_c185.pdf

  23. Gravatar of Greg DeLassus Greg DeLassus
    1. November 2018 at 13:39

    If you are not inclined to count per curiam judgments, then you will have to go slightly farther back to 14 June 2018 (not that long ago, in other words), to Animal Sci. Prods v. Hebei Welcome Pharma. (URL below). One way or the other, 9/0 judgments are not actually all that unusual. The news media feeds on conflict, so the ones you hear about are disproportionately likely to involve fractured 5/4 coalitions. Those 5/4 cases have conflict and drama. The ones that get a lot of press ink, however, are not a representative sample of actual SCotUS output.

    https://www.supremecourt.gov/opinions/17pdf/16-1220_3e04.pdf

  24. Gravatar of Christian List Christian List
    1. November 2018 at 16:46

    Matthew,

    Christian, is your argument that Wong Kim Ark was wrongly decided?
    Is your argument that Wong Kim Ark was rightly decided but it does not apply to illegal immigrants?

    My position is that constitutions are similar to religious texts. People read into them what they want, whenever they want. Just look at history. They even justified slavery with the US Constitution.

    Nobody should act as if the racist legislators of that time wanted to enable US citizenship for children of millions of illegal immigrants from South America. That’s not very plausible.

    But what matters in the end anyway is the opinion of the Supreme Court judges.

    My personal view is that they indeed didn’t decide the case of illegal immigrants yet. But my personal view doesn’t really matter.

    The category of illegal immigrants did not exist in the 1860’s.

    Exactly. So it’s not decided yet.

    It’s really stretching “originalist” ideas to read a distinction which did not exist at drafting.

    What I find really stretching is that progressives act as if the Constitution was made by people who had the progress of the last decades in mind. Let’s face it: The US was a pretty conservative, racist nation back then and way less progressive than the US of today. Nevertheless so many people act as if the progress of the last decades is already in the Constitution. I’m mostly in favor of progress, I just find it extremely dishonest to justify it with the US Constitution. So many people pretend that 150 years ago, racist people have already anticipated, planned and enacted the progress of 2018 in the Constitution. That’s just not true. I’m not going to lie about this for political reasons.

    @mbka

    Right now, the US has about zero appeal world wide,

    pretty soon there won’t be much of an immigration problem anymore to the US, the same way as no one really wants to immigrate into Russia either.

    You misrepresent the situation for political reasons. I also hate Putin, but it does not help to lie about the facts. When you research the facts, you quickly find out that Russia and the US have a lot of immigrants. The US is usually first place during the last decades, and to my surprise Putin’s Russia seems to be 2nd or third place right now.

    @Scott

    “When was the last 9-0 decision?”

    Sorry, my mistake.

    Nevertheless, I think that the case is misrepresented. Just think about the past.

    Trump was given close to no chance for the presidency. I saw 150,000 articles claiming it was crazy. The result is history.

    Or think of the “Muslim ban”. 150,000 articles have claimed that it is against the Constitution. Even judges at lower courts have made this statement. And what happened after that? Right. The Supreme Court appeared on the scene.

    It’s mostly TDS. You confuse the bitter reality with your personal wishes.

  25. Gravatar of Dan W. Dan W.
    1. November 2018 at 17:39

    When the alien mother / father leave the American hospital with their new born “American” citizen and return to their home country, does the American government have any jurisdiction over that baby who is claimed by Sumner to be an American citizen? If that baby grows to become a financial tycoon in his/her home country does the American government have any jurisdiction on that person’s wealth? Does the IRS send notice of taxes owed because this “American” is not reporting earnings?

    So we see the claim of birthright citizenship isn’t all that simple. For the American government does not exercise any jurisdiction over this child or make a claim on him/her until a claim of citizenship is made.

  26. Gravatar of Benjamin Cole Benjamin Cole
    1. November 2018 at 18:10

    Egads. President Trump just said the US military should respond with rifle fire if illegal immigrants throw rocks at them, I presume in some sort of border skirmish.

    Much of what Trump says is taken out of context, twisted and amplified by anti-Trumpers. That’s fine, that is politics.

    In this case, no twisting or distortion is needed.

    I wish Trump would step down, but Pence and the standard GOP might be even worse, if not in tone, then in results for average Americans.

    And same for the Donks.

    This is quite a pickle to be in.

  27. Gravatar of Jeff Jeff
    1. November 2018 at 19:43

    Diplomats, some American Indians, and hypothetical uniformed members of an invading army are the only people not subject to the jurisdiction of the U.S. when they are within the country. So far as I know, those are the only exceptions, so the only legal way to do away with birthright citizenship for native-born children of illegal immigrants would be via a Constitutional amendment. It is highly unlikely that such an Amendment could pass today.

    Trump has touted his appointments of Justices Gorsuch and Kavanaugh, both of whom, along with Justices Thomas, Alito and Roberts, favor “original public meaning” jurisprudence. The idea is that whenever possible, laws and or Constitutional provisions should be construed to mean what they actually said at the time they were passed. Not what someone may or may not have intended, but what they actually passed. This is why Clarence Thomas doesn’t usually care much about legislative history or speeches on the Congressional floor about what the law was intended to achieve. Only if the text of the law itself is unclear do you start looking at such secondary sources.

    So what Trump is advocating here directly contradicts the judicial philosophy he looks for in choosing judges. It’s incoherent. But I can’t believe Trump doesn’t know this. Even if it didn’t occur to him personally, surely he has staff who will tell him that he’s not making any sense. So what is he really up to? I think he’s hoping to rile up his base for next week’s election, and then this trial balloon will quietly disappear.

  28. Gravatar of mbka mbka
    2. November 2018 at 02:24

    Harding,

    while I am surprised that Russia does get up to 4th place or so as immigration destination worldwide (total numbers and comparing to individual countries, not e.g. the EU total for example, and not per capita), let me also cite, according to one source at least, the origin of the immigrants in Russia:

    Ukraine 29.72% Georgia 5.25%
    Kazakhstan 21.58% Armenia 4.02%
    Belarus 7.81% Kyrgyzstan 3.87%
    Uzbekistan 7.66% Tajikistan 3.2%
    Azerbaijan 7.06% Moldova 2.32%

    … they’re literally ALL ex soviet republics, mostly dictatorships and/or countries with recent civil wars. This somehow modulates the meaning of the raw data. By share of population that are immigrants, Russia still resides below the Ukraine, how about that (and there is a civil war there), and say, Malaysia, or South Africa, and much below anything in Europe.

    But fair enough, I won’t move the goalposts, so let me declare thusly that there are countries for which even Russia is a step up.

  29. Gravatar of dtoh dtoh
    2. November 2018 at 06:19

    Scott,

    You know I’m not an immigration hawk, but I don’t think the legal case is a slam dunk. For the legal beagle commenters on this post, the Wong Kim Ark decision was very clearly predicated on implied or expressed consent of the state in allowing a person to become subject to jurisdiction by entering the country. Where consent to jurisdiction is waived (foreign diplomats, Native Americans) or not granted (invading armies,) no constitutional birthright to citizenship exists.

    The Supreme Court would only need to follow precedent in order to affirm the President’s view of birthright citizenship, and…. in the absence of any legislation on this matter, the President would most likely be free to use an Executive Order to terminate the granting of citizenship to children of illegal immigrants born in the U.S.

    It continues to amaze me that people rely on the popular press and never bother to check the facts for themselves.

  30. Gravatar of dtoh dtoh
    2. November 2018 at 06:32

    Scott,
    One more thing. What did you think of the 0.2% increase in the LFPR. On annualized basis that’s equivalent to a 4.2% drop in unemployment. At that rate, by the end of the his first term, the President’s assertion of an 18% unemployment rate will have proven to be correct

  31. Gravatar of Jeff Jeff
    2. November 2018 at 07:13

    dtoh,

    It is a slam dunk. If you interpret “subject to the jurisdiction” to exclude illegal aliens, then on what basis can you even say they’re illegal? By your interpretation, they’re not subject to immigration laws to begin with. In fact, your interpretation makes all immigration law pointless, since no one is subject to it except those who are already citizens.

  32. Gravatar of Matthew Waters Matthew Waters
    2. November 2018 at 08:08

    Christian,

    You didn’t answer the question. Was Wong Kim Ark wrong decided? Yes or no?

  33. Gravatar of Matthew Waters Matthew Waters
    2. November 2018 at 08:15

    dtoh,

    The Supreme Court wouldn’t be following precedent one way or another. At best, the Supreme Court would be disobeying precedent by upholding Trump’s EO. The SC would be ruling contrary to Pyler v Doe. I agree Wong Kim Ark, in itself, did not give present for illegal immigrants. But Pyler v Doe did, both my the majority and dissents.

    There is zero precedent for upholding Trump’s EO.

    Even if it’s a “Case of First Impression,” the case would be wrongly decided if Trump’s EO were upheld. A baby who first enters the world on US soil and who *themselves* is subject to the laws of the US is a US citizen. The sins of the parent don’t visit on the child.

  34. Gravatar of Matthew Waters Matthew Waters
    2. November 2018 at 08:19

    “present” should be “citizenship.” “my” in the next sentence should be “by.”

    Sorry, I shouldn’t have typed it out on my phone without proofreading.

  35. Gravatar of ssumner ssumner
    2. November 2018 at 08:39

    Jeff, You said:

    “So what Trump is advocating here directly contradicts the judicial philosophy he looks for in choosing judges. It’s incoherent.”

    Yep, and Trump frequently does this. Just the other day he criticized Powell for not keeping interest rates low, while in 2016 he said low rates were a horrible policy. That’s one of the things I found so amusing about this, and it’s why I referenced Kavanaugh.

    Brian, I’m having fun, and I seriously doubt this blog has any impact on Trump’s support–either way.

    dtoh, Sorry, I don’t follow your argument. Wong Kim Ark never “entered” the country. Someone born and raised in the US does not enter the US illegally. They are just as American as Donald Trump. The language of the Constitution is plain as day. The status of the parent is totally irrelevant. The two dissenting votes in Wong based their argument on the (supposed) inferiority of the Chinese people, not any coherent legal reasoning.

    That’s not to say I know how the Supreme Court will decide a case; they often ignore the plain language of the Constitution (as with eminent domain). But people who are experts on the Court say they’ll clearly uphold the 14th in this case. (Actually, I doubt Trump will even issue an executive order, this is all midterms politics.)

    Children of diplomats are not under the jurisdiction of US laws. Children of illegals are. That’s so obvious it’s not even debatable. Suppose one of my daughter’s fellow students at UCLA was born to an illegal. He gets a parking ticket on campus and claims he doesn’t have to pay it because the US government has no jurisdiction. I’m mean seriously, what are people arguing here?

  36. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 08:44

    “For the legal beagle commenters on this post, the Wong Kim Ark decision was very clearly predicated on implied or expressed consent of the state in allowing a person to become subject to jurisdiction by entering the country.”

    Would you mind citing the passage in the decision that you think best embodies this “very clear” premise of the decision? I confess that I really do not see this alleged predicate anywhere present in the Wong Kim Ark decision. The idea of “consent” never seems to cross Justice Gray’s mind, as near as I can see. It is all about status of the parties, not consent of the sovereign.

  37. Gravatar of ssumner ssumner
    2. November 2018 at 08:44

    Dtoh, As I’m sure you know, monthly LFPR data points are meaningless. That’s why you don’t mention the months when it goes down. The recent figure (62.9%) is identical to January 2017, when Trump took office. A better argument for your position is the prime age participation, which has been trending upwards for 3 years. That is progress.

    The “real unemployment rate” is still close to 40%, similar to the level it was at when Trump claimed it was at that level under Obama.

  38. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 09:19

    “When the alien mother / father leave the American hospital with their new born “American” citizen and return to their home country,… [i]f that baby grows to become a financial tycoon in his/her home country does the American government have any jurisdiction on that person’s wealth?”

    Yes. This has been another episode of “easy answers to foolish rhetorical questions.”

  39. Gravatar of Dan W. Dan W.
    2. November 2018 at 13:22

    Greg,

    Can you explain how the US government exercises its jurisdiction on a person who was born in a US hospital but who never made a claim of citizenship, never stepped foot on American soil since, never signed up for Selective Service, may not even speak English?

    Your claim is the US government has information on every person born in an American hospital and exercises jurisdiction over that person, no matter where that person may reside in the world. I doubt that is true. Is there a government agency that tracks newborns and knows where they are living and knows that they are American citizens?

    What if the person doesn’t want to be an American citizen? Does the American government say they must be an American because they happened to be born on American soil?

    It makes sense to define as American citizens those who are born on American soil and who grow up on that soil, experiencing American Life in American society. It is illogical to assert that the simple act of being born on American soil defines the person as American if the person has no attachment to the country and no effort is made to establish a relationship between the person and the USA. In such a situation the idea the USA has jurisdiction over the person is ludicrous.

  40. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 13:35

    “Can you explain how the US government exercises its jurisdiction on a person who was born in a US hospital but who never made a claim of citizenship…?”

    Please re-read your earlier line that I quoted. You did not ask whether the U.S. *exercises* jurisdiction over our hypothetical tycoon. You asked whether the government *has* jurisdiction. I answered that it *has* jurisdiction. I doubt in practice that the IRS actually follows up on collecting taxes in such a circumstance, but U.S. law considers that the IRS has every legal right to do so, because that individual is a citizen and because the U.S. (rather unusually) believes that it has jurisdiction to collect income tax from all citizens, regardless of where that income is earned.

    “Your claim is the US government has information on every person born in an American hospital and exercises jurisdiction over that person, no matter where that person may reside in the world.”

    Just to be clear, that is not my claim. Just as you say, I doubt that the U.S. government has the wherewithal in practice to track individuals in the hypothetical circumstance that you describe (a point which is neither here nor there to the reductio ad absurdum argument that you were attempting above).

    “What if the person doesn’t want to be an American citizen? Does the American government say they must be an American because they happened to be born on American soil?”

    What do you mean by “must be”? A person born on American soil (excepting the children of diplomats and occupying enemy troops) is a U.S. citizen. A U.S. citizen is legally permitted to renounce his/her U.S. citizenship, so if this hypothetical individual did not want to be a U.S. citizen, s/he has legal recourse to be rid of this citizenship. Unless and until s/he takes such active steps, however, that person is a U.S. citizen.

    “It makes sense to define as American citizens those who are born on American soil and who grow up on that soil, experiencing American Life in American society.”

    Yes, I agree that makes sense.

    “It is illogical to assert that the simple act of being born on American soil defines the person as American if the person has no attachment to the country and no effort is made to establish a relationship between the person and the USA.”

    I am less than clear on the logical contradiction you perceive here. Care to unpack it?

    “In such a situation the idea the USA has jurisdiction over the person is ludicrous.”

    I guess that we will have to agree to disagree on the “ludicrous” characterization.

  41. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 13:39

    “For the legal beagle commenters on this post, the Wong Kim Ark decision was very clearly predicated on implied or expressed consent of the state in allowing a person to become subject to jurisdiction by entering the country.”

    The more I think about this, the more clear it is that this *has* to be wrong. The sovereign consents to the ambassador’s presence on the sovereign’s territory, and yet the ambassador’s children are among the few who are *clearly* not citizens by dint of birth within the sovereign’s territorial boundary. In other words, sovereign consent *cannot* be the operative distinction here.

  42. Gravatar of dtoh dtoh
    2. November 2018 at 14:05

    Greg DeLassus
    1) Thank you for answering the truly foolish rhetorical question.

    2)”All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.”
    I.e. status of the parties is based on the consent of the sovereign.

    Matthew Waters
    Pyler vs. Doe is a decision on the equal protection clause not the citizenship clause.

    Scott,
    All the exceptions to to the citizenship clause of the 14th amendment are based on the status of the parent not the child. To interpret it any other way would be circular and absurd. I.e. the status of the child would depend on the status of the child.

    “Someone born and raised in the US does not enter the US illegally. They are just as American as Donald Trump.”

    This is just wrong. There are exceptions as provided for in the Amendment and recognized by the courts. The courts have not adjudicated on the particular case of the child of a parent unlawfully in the U.S., but the other exceptions are based on consent of the state to the status of the parent.

    That said, I think you hinted on an important distinction which is the difference between “born and raised” versus just born in the U.S. I suspect if this issue was ever adjudicated, the court would craft an opinion based on some argument of implied consent that would exempt people already born, but which acknowledged Congress’s and/or the President’s authority to end the implied consent through the enactment of legislation or issuance of an executive order.

  43. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 14:32

    “‘All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.’
    I.e. status of the parties is based on the consent of the sovereign.”

    Your conclusion does not follow from your premise here. The consent in your quote refers to the consent of the sovereign not to exercise jurisdiction over the ambassador, not to the sovereign’s consent to have the (foreign) ambassador on the sovereign’s territory. As noted above, if consent of the sovereign really were relevant, then the ambassador’s children would be citizens. The fact that the ambassador’s children are the paradigmatic example of *non*-citizens indicates that you are thinking about the sovereign’s “consent” here from the wrong direction.

    I suppose that if the U.S. were to declare all persons not legally present in our borders to be outlaw (in the old fashioned, “caput gerat lupinum,” sense), then one might say that they are not “subject to the jurisdiction thereof.” Of course, Plyler v. Doe has already foreclosed the possibility of the government making that sort of “caput gerat lupinum” declaration.

    One way or the other, however, Won Kim Ark simply does not say anything about jurisdiction within the sovereign’s territory deriving from the consent of the sovereign to the presence of person within that territory. I see no evidence that the question of “consent” in that sense even crossed Justice Gray’s thoughts.

  44. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 14:48

    “Pyler vs. Doe is a decision on the equal protection clause not the citizenship clause.”

    No doubt true, but I am not sure what this is supposed to prove. On the way to holding for the children in Plyler, the Court had to construe the meaning of “jurisdiction” in the equal protection clause, and the Court grounded that holding in the meaning of “jurisdiction” in the citizenship clause as set forth by Won Kim Ark. In other words, part of the *holding* in Plyler is that the word jurisdiction means the same thing in the two clauses, and that this “jurisdiction” reaches even to people not legally present on our territory.

    Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982) “[T]he Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term ‘jurisdiction’ was used… [I]t was ‘impossible to construe the words “subject to the jurisdiction thereof,” in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words “within its jurisdiction,” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”‘… [N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

    The one slight crack of light I see there for those who do not want immigrant children to be citizens is the talk of “resident” aliens. I suppose that one could make a good case for the idea that the children of so-called “birth tourists” (wealthy people who travel here on tourist visas for the mere purpose of a birth taking place on U.S. soil) do not gain U.S. citizenship by the mere act of being born here, because their families are not “resident” or “domiciled” here. In the case of long-term immigrants unlawfully present in our borders, however, Plyler really has cut off any plausible arguments that might hope to exclude from citizenship on the basis of the “subject to the jurisdiction” text.

  45. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 14:54

    “As noted above, if consent of the sovereign really were relevant, then the ambassador’s children would be citizens.”

    On re-reading, I see that this is not quite as clear as I would wish. Please allow me to re-phase.

    “As noted above, if consent of the sovereign *to an individual’s presence withing the sovereign’s boundaries* really were relevant, then the children of ambassadors would be citizens.”

  46. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    2. November 2018 at 15:25

    ‘Patrick, LOL. I presume your logic also applies to the 2nd Amendment?’

    No, of course it wouldn’t since these are two different issues. Whenever I get such a foolish response I know that my opponent has no real argument to offer.

  47. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    2. November 2018 at 15:27

    ‘On the way to holding for the children in Plyler, the Court had to construe the meaning of “jurisdiction” in the equal protection clause, and the Court grounded that holding in the meaning of “jurisdiction” in the citizenship clause as set forth by Won Kim Ark. In other words, part of the *holding* in Plyler is that the word jurisdiction means the same thing in the two clauses, and that this “jurisdiction” reaches even to people not legally present on our territory.’

    Sorry, you’re wrong. Brennan’s little sophistry you’ve quoted above is in a footnote, not in the decision. It has zero legal effect. Nada.

  48. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    2. November 2018 at 15:32

    BTW, the legal term for what Wm. Brennan did in Plyler is ‘dicta’.

    https://www.law.cornell.edu/wex/dicta

    ———–quote———–
    Dicta

    The plural form of dictum. A statement of opinion or belief considered authoritative because of the dignity of the person making it. The term is generally used to describe a court’s discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar.

    Judicial dictum is an opinion by a court on a question that is not essential to its decision even though it may be directly involved.
    ———–endquote———–

  49. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    2. November 2018 at 15:45

    ‘Children of diplomats are not under the jurisdiction of US laws. Children of illegals are. That’s so obvious it’s not even debatable.’

    Your premise is faulty. ‘Jurisdiction’ doesn’t mean what you think it means.

  50. Gravatar of dtoh dtoh
    2. November 2018 at 16:04

    Greg,
    I understand your argument, but I think the counter argument would be that “consent” is not limited to the waiving of jurisdiction, but that consent (implied or express) of the state is required for a person to enter into the jurisdiction of the state. Thus no constitutional citizenship by birthright for children of invading armies. In other words, “the….power [jurisdiction] of a nation within its own territories, must be traced up to the consent of the nation itself.”

  51. Gravatar of Dan W. Dan W.
    2. November 2018 at 16:09

    Greg,

    I appreciate your thoughts on the subject and I especially agree with your “one slight crack of light” paragraph.

    My hypothetical, which is to some degree proved by birth tourism, demonstrates the inadequacy of assigning American citizenship to alien infants based on the location of birth. Those that see the option of claiming American citizenship as a prize clearly like this policy – it is an amazing loophole in the era of jetliners.

    But it is obvious birth citizenship is an option and not an imposition. Clearly, the US government would not impose citizenship on an infant if the parents did not desire it – talk about the sins of the parent being laid on the child!

    Alas, the failure of American immigration policy to get “birth citizenship” right is just a door scratch in what is a massive trainwreck. There is no consistency in enforcement and the government priorities are always shifting based on election results and political strategy – recognizing that even Democrats are two faced on immigration reform.

  52. Gravatar of dtoh dtoh
    2. November 2018 at 16:17

    Dan W.

    “Your claim is the US government has information on every person born in an American hospital and exercises jurisdiction over that person, no matter where that person may reside in the world. I doubt that is true. Is there a government agency that tracks newborns and knows where they are living and knows that they are American citizens?”

    Absolutely yes it is true. The IRS proactively pursues “accidental Americans.” This is widespread and thanks in large part to FATCA and equivalent legislation in foreign countries, the US has very extensive information these citizens.

  53. Gravatar of BC BC
    2. November 2018 at 16:41

    Even most conservatives agree that the 14th Amendment protects birthright citizenship. The ones searching for a tortured reading that excludes children of illegal immigrants are actually a fringe minority. However, I am dismayed by how many conservatives try to give some cover to Trump by saying something like, “Even though birthright citizenship is silly, it would take a constitutional amendment to change it.” The notion that people born here are born equal, regardless of their parents, is not “silly”. It’s just about the most fundamental American principle one could possibly imagine. Birthright citizenship is not some sort mistake or artifact of a poorly crafted 14th Amendment.

  54. Gravatar of dtoh dtoh
    2. November 2018 at 17:07

    Greg,
    Also I think your citation slightly misleading in that you’re conflating the citation “N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful” with the Won Kim Ark citation.

    Won Kim Ark does not speak to whether the jurisdiction has the same meaning or limitations for the citizenship clause as for other clauses in the 14th. Similarly Plyler only asserts equivalence for the due process and equal protection clause.

    Further, I think it is quite easy to construe the Plyler decision as based in part on implied consent since it relies on the assumption that under U.S. policy many of the children would not ultimately be deported.

  55. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 20:40

    “‘[C]onsent’ is not limited to the waiving of jurisdiction, but that consent (implied or express) of the state is required for a person to enter into the jurisdiction of the state.”

    This strikes me as a *really* strained reading of Wong Kim Ark (certainly not a “very clear” predicate of the decision). The Court begins (169 U.S. at 655) with “[t]he fundamental principle of the common law with regard to English nationality was birth within the… ‘power’ of the King. The principle… w[as] not restricted to natural-born subjects… or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.” This is the general, common law rule that the Court uses to interpret the XIV amendment text.

    The Court then proceeds (Id. at 657) to note that the common law admits of *only* two exceptions to this general rule: “the children of foreign ambassadors… or a child born to a foreigner during the hostile occupation of any part of the territories of England.” As you no doubt know, exceptions to general rules are to be narrowly construed. IRS v. Clark, 489 U.S. 726, 739 (1989).

    The portion that you quoted (169 U.S. at 684) subsists in a portion of the decision where the Court said is trying to explain the rationale for those two exceptions, and in particular for the exception regarding ambassadors. The Court explains (Id.) that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute… All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.” In other words, there are two exceptions to birthright citizenship, one of which applies to diplomats, and the Court is trying—in the quoted portion—to explain this exception.

    It is important to note two points here. First, the “consent” in question is the sovereign’s consent not to exercise jurisdiction over diplomats, not the sovereign’s consent to the diplomat’s presence in the territory. Second, one must note that it is an *exception* that is being explained here. As noted above, exceptions are narrowly construed. Therefore, it makes no sense to strain to give the cited portion a broad reading, as if this “consent” principle applies beyond the context of diplomats.

    Rather, the point that should be read broadly is the general rule, not the exception. The general rule, which the Court reiterates several times in its broad formulation is that (Id. at 664) “all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth… .”

  56. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 21:59

    “I think your citation slightly misleading in that you’re conflating the citation “N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful” with the Won Kim Ark citation.”

    Naturally it was not my intent to confuse the part where the Plyler court was speaking with the part where the Plyler court was quoting Wong Kim Ark. That said: (1) my quote included internal quotation marks, which claimed send before the “no plausible distinction” bit, so I do not think that my quote was all that confusing; and (2) the Plyler court is neither more nor less authoritative than the Wong Kim Ark court, so I am not sure that there is much legal difference one way or the other.

  57. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 22:30

    “Brennan’s little sophistry you’ve quoted above is in a footnote, not in the decision. It has zero legal effect. Nada. BTW, the legal term for what Wm. Brennan did in Plyler is ‘dicta’.”

    Do you mean to imply that all text in footnotes is dictum, because that is… not how it works.

    Footnote 10 is *definitely* part of the holding here, not the dictum. Remember IREAC? First you have to identify the issue at stake, then you need to identify the rule used to decide the issue. Both are parts of the holding.

    “Judicial dictum is an opinion by a court on a question that is not essential to its decision even though it may be directly involved.”

    Right. Exactly. So, what was the issue that Plyler was deciding? “Appellants… emphasiz[e] that… persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws” (457 U.S. at 211). How did the Court decide that issue? “Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction’, (Id.). In other words, this question was an essential part of the *holding* of the case, not dictum.

    So, what rule did the Court use to reach that decision of that issue? Why, the very same footnote 10 that I quoted provides the rule, viz. “[a]lthough we have not previously focused on the intended meaning of this phrase [i.e., ‘within its jurisdiction’],… Justice Gray, writing for the Court in… Wong Kim Ark… noted that it was ‘impossible to construe the words ‘subject to the jurisdiction thereof’… as less comprehensive than the words ‘within its jurisdiction’… [G]iven the historical emphasis on geographic territoriality,… no plausible distinction can be drawn between resident aliens whose entry… was lawful, and resident aliens whose entry was unlawful.” That quoted footnote is the *rule* that the Plyler court used to reach its holding on this issue, and the rule is part of the holding, not the dictum. Therefore, footnote 10 is law, not dictum.

  58. Gravatar of Greg DeLassus Greg DeLassus
    2. November 2018 at 22:39

    “[I]t is obvious birth citizenship is an option and not an imposition. Clearly, the US government would not impose citizenship on an infant if the parents did not desire it…”

    Perhaps this is “clear” and “obvious” to you, but not to me. Most sovereigns (ours included) feel little compunction about imposing their laws on the unwilling. Our law attaches citizenship at birth. If the parents really object to their child having U.S. citizenship, our law makes provision (8 USC 1481) for renouncing that citizenship. They are free to exercise those renunciation mechanisms, but unless and until they do, the child born our territory is a U.S. citizen (even if s/he might also rightfully claim citizenship elsewhere).

  59. Gravatar of dtoh dtoh
    2. November 2018 at 22:44

    Greg,
    I get the argument, but…it strikes me that a) consent is presented as a broad principle which underpins the concept of jurisdiction, (the specific exceptions may be narrowly constrained but not the general principle,) and b) the case is based on the child of parents lawfully domiciled and resident in the U.S. and therefore not controlling in a case with rather different issues which probably were never even considered by the court or the framers of the Amendment.

    Also the “broad formulation is that (Id. at 664) “all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth… ” is not I think the court’s determination but rather a summary of prior thinking on the issue.

    BTW – I’m generally in favor of unrestricted birthright citizenship, but I doubt it will survive in it’s present form given a) the ambiguity of the legal precedents, b) it’s unpopularity both in the U.S. and worldwide, and c) the growing backlash of “accidental” Americans who have been financially penalized by its consequences.

    Also I’m actually a lot more interested in a discussion of a practical political solution to the ongoing arbitrariness and uncertainty that puts so many people’s lives in turmoil.

  60. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    3. November 2018 at 06:19

    Greg DeLassus asks;

    ‘So, what was the issue that Plyler was deciding?’

    That’s easy. It was whether or not children whose parents were in the country illegally were, nonetheless, entitled to attend public schools. They were (as were the children of diplomats, btw).

    The issue was NOT, were those children citizens. The SCOTUS has never ruled on that.

  61. Gravatar of Greg DeLassus Greg DeLassus
    3. November 2018 at 09:50

    Mssrs Sullivan & Dtoh, are you folks lawyers? Because you cited me precedent and distinguished holding from dictum, I assumed that we were all three lawyers, having a legal discussion. You recent replies, however are each so *strange* (as examples of *legal* reasoning) that I am wondering if I had misunderstood the premise of these conversations.

    “[T]he ‘broad formulation’… is not I think the court’s determination but rather a summary of prior thinking on the issue.”

    There is no daylight between those two. As Justice Gray explains right at the front of the analysis section (169 U.S. at 654) “[t]he Constitution nowhere defines the meaning of [‘citizenship’ & ‘jurisdiction’], either by way of inclusion or exclusion… In this… it must be interpreted in the light of the common law… .” In other words, we need to look to common law (prior thinking on the issue) to determine what the words in the Constitution mean. Once one understands “prior thinking on the issue,” one has “the [C]ourt’s determination.” If you want to talk about a “very clear” predicate of the Wong Kim Ark decision, it is that the Court is slavishly following the common law to interpret the Constitutional text.

    “[The issue] was whether or not children whose parents were in the country illegally were, nonetheless, entitled to attend public schools… The issue was NOT, were those children citizens.”

    *An* issue decided in Plyler was whether the kids could attend public school. That was not the only issue. A subsidiary issue along the way to the ultimate issue was the meaning of “jurisdiction” in the equal protection clause. Because that issue was necessary to the Court’s ultimate conclusion, the rule used to decide that issue is *holding*, not dictum. The rule is set forth in footnote 10, so footnote 10 is holding, not dictum.

  62. Gravatar of Greg DeLassus Greg DeLassus
    3. November 2018 at 10:01

    “I’m actually a lot more interested in a discussion of a practical political solution to the ongoing arbitrariness and uncertainty that puts so many people’s lives in turmoil.”

    Fair enough, and good on you. I am a lawyer. I am interested in the question of what *is* the law, and only less so in what the law *should be* to achieve “a practical political solution to… ongoing arbitrariness… .”

    It seems clear to me that Wong Kim Ark is not amenable to the reading that you are trying to give it (especially in view of Plyler). Perhaps, as you intimate, a useful social outcome might emerge from forcing Wong Kim Ark’s holding into an alternate frame of thought—as you are so mightily trying to do—but that is much more a question of what the law could or should be than of what it is.

  63. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    3. November 2018 at 10:12

    ‘Mssrs Sullivan & Dtoh, are you folks lawyers?’

    Nice try, is Posner a lawyer? I guess he must be to be on the Appeals Court in Chicago.

  64. Gravatar of Greg DeLassus Greg DeLassus
    3. November 2018 at 10:35

    Yes, Judge Posner has an excellent legal mind. Why do you ask?

    Incidentally, do you mean to say that you are not a lawyer?

  65. Gravatar of Laura Laura
    3. November 2018 at 10:55

    This is a typical series of events when an illegal immigrant is arrested: The illegal immigrant will be held in the jail in which they were charged; the jail will report they suspect the person is an illegal immigrant to ICE. ICE will indicate to the jail that the person is a probable I llegal. ICE officers come to the jail. They take the illegal immigrant into federal custody. They place him or her in a federal detention center. And ICE then transports the probable illegal immigrant to immigration court where they will receive a status hearing and then be expelled.

    As illegals do not want to be deported they usually prefer to go to prison than admit their status but if during their trial they admit their illegal status they will escape conviction. Many jurisdictions look the other way because they disagree with national immigration restrictions.

    When a visitor or immigrant signs for a visa they agree to subject themselves to the jurisdiction of the country. For visa waiver countries, treaties mean they accept this as a condition of their passport if they present their passport to enter the country.

    Foreign citizens must voluntarily submit to the jurisdiction of the country they visit. All who enter legally do; those who do not enter legally do not and cannot be deprived of liberty. They can only be expelled.

    If they weren’t expelled they could break the laws of the US with impunity. Immigration enforcement is important and essential to maintaining an ordered society.

  66. Gravatar of dtoh dtoh
    3. November 2018 at 15:11

    Greg

    Am I lawyer? Of course not. Why would you think that? I did watch Perry Mason once though. Does that count? :-)

  67. Gravatar of Patrick R Sullivan Patrick R Sullivan
    4. November 2018 at 21:02

    ‘Yes, Judge Posner has an excellent legal mind. Why do you ask?’

    Let me guess, you were in the bottom half of your law school class?

    I asked a rhetorical question to illustrate your reliance on the classic logical fallacy of the Appeal to Authority (in this instance, the weakest authority of all, yourself). Now, to your false statement;

    ‘*An* issue decided in Plyler was whether the kids could attend public school. That was not the only issue.’

    Except that that is exactly what the Supreme Court said was the only issue;

    http://www.uscourts.gov/educational-resources/educational-activities/access-education-rule-law

    ————–quote————
    Issue

    Whether denying undocumented children of illegal immigrants the right to attend public school constitutes discrimination based on alienage that violates the Equal Protection Clause of the Fourteenth Amendment?

    Ruling

    Yes.

    Reasoning

    (Brennan, J.) By a 5–4 vote, the Court concluded that the Texas legislation violated the Equal Protection Clause. The Court explained that “education has a fundamental role in maintaining the fabric of our society” and “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.” Further, while persuasive arguments support the view that a state may withhold benefits from people whose presence within the country is a result of unlawful conduct, the children of such illegal entrants “can affect neither their parents’ conduct nor their own status,” and “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

    While the state has a legitimate interest in protecting itself from an influx of illegal immigrants, there was no evidence to suggest that any immigrants came to the country to avail themselves of a free education. Similarly, while the state has an interest in removing burdens on the state’s ability to provide high-quality public education, there was no evidence that the exclusion of undocumented children was likely to improve the overall quality of education in Texas.

    Accordingly, the majority affirmed the lower court’s ruling.
    —————endquote—————

    There’s the actual authority speaking; SCOTUS. And, as I have already explained to you, Brennan’s sophistry about jurisdiction and citizenship is ‘dicta’, and has no legal force.

    Why is that so hard to get through your thick head?

  68. Gravatar of Brendan Brendan
    5. November 2018 at 06:29

    The Wong Kim Ark ruling set a precedent that, if my understanding is correct the child of two legal residents to the US is considered “subject to the jurisdiction”

    The author of the amendment stated that it did not include aliens and foreign diplomats, and other rulings [and statements] that ‘subject to the jursidction’ doesn’t simply or strictly include being physically present on US soil and therefore being subject to its laws. It implies a degree of loyalty. Just as an invading army can’t sire US citizens at will. So saying that SCOTUS could decide to side with the EO [or say the content of the EO is only constitutional if voted on by congress] is far from impossible, but not certain.

    Allowing the system to stand as it is strikes me as formalizing US immigration as a kind of football game. But that doesn’t mean SCOTUS won’t rule it the case. But it’s not a surprise people are ok with this when they genuinely believe the US shouldn’t even have a goalie, so to speak.

    SCOTUS ‘could’ officially declare that merely being physically present on US soil means you owe loyalty to the US and therefore your children automatically become citizens. But I don’t think it’s obligated to make that kind of ruling.

    I’m going to be generous and assume that POTUS knows this EO will be challenged by the lower courts and intends it to be decided by SCOTUS. It *could* be a gimmick designed purely for the midterms with no intent of not being struck down, or POTUS somehow has inside information on how the justices will vote.

  69. Gravatar of Greg DeLassus Greg DeLassus
    5. November 2018 at 08:24

    “Why is that so hard to get through your thick head?”

    Mostly because it is not accurate.

    “I have already explained to you, Brennan’s sophistry about jurisdiction and citizenship is ‘dicta’, and has no legal force.”

    Well, you have demonstrated something, at any rate. Perhaps not what you set out to demonstrate, but that happens.

  70. Gravatar of Patrick R Sullivan Patrick R Sullivan
    5. November 2018 at 13:56

    Okay, here’s your big chance to impress everyone with your finely honed legal mind. SPECIFICALLY, what ‘is not accurate’?

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