Halls of Shrewd'm / US Policy
No. of Recommendations: 5
No. of Recommendations: 2
Of course its unconstitutional. But that's not the point of Trump's order.
The point of the order is to toss some red meat at his base - doing something they want. When it is shot down by the courts, it becomes another point to keep the people riled up.
--Peter
No. of Recommendations: 8
Here's the judge:
"I am having trouble understanding how a member of the bar could state unequivocally that this order is constitutional," the judge told a U.S. Justice Department lawyer defending Trump's order. "It just boggles my mind."
That is...wow. When a judge says that to you in open court? You know you're not going to have a fun time defending this EO as the lawsuit progresses....
No. of Recommendations: 0
You know you're not going to have a fun time defending this EO as the lawsuit progresses....
What was the original purpose of the 14th Amendment?
No. of Recommendations: 11
What was the original purpose of the 14th Amendment?
Among other things, to make sure that the government did not exclude (or perpetuate the exclusion) of people born in this country from the rights and protections of citizenship. You can't have two different groups of people who are born here: those who have the rights of citizens, and those who don't. So everyone born here is a citizen - as long as they're not outside the jurisdiction of the government (like a foreign ambassador who is already completely protected from the government by virtue of their diplomatic status), they are given the most basic protection against the government, the right to have citizenship.
That was one of the depredations of chattel slavery - it was a condition that was inherited. If the parents of a child were slaves, and therefore not citizens, then the child would themselves not be a citizen and be a slave. So that goes away - no matter what the status of your parents, everyone in this country starts off as a citizen - the core protection against government abuse of them.
No. of Recommendations: 1
Question.
Does the DOJ lawyer have a choice but to defend the order?? That's his job, right? Even if he knows there is no legal basis for the order, he has to defend it. Just like a lawyer has to defend a client he knows is guilty, to the best of his ability.
No. of Recommendations: 5
Does the DOJ lawyer have a choice but to defend the order?? That's his job, right? Even if he knows there is no legal basis for the order, he has to defend it. Just like a lawyer has to defend a client he knows is guilty, to the best of his ability.
A lawyer has an ethical obligation to zealously represent their client (in general - I don't know what the the Washington state bar rules provide specifically, but it will be something like that). Even if the client has a bad case, they're allowed to have that case presented.
The lawyer also has a duty to the court, though that's some pretty basic stuff - they're not supposed to lie or commit fraud on the court, they have to follow the court's rules, etc.
So if the client wants the lawyer to go in and advance an utterly dubious legal argument, the lawyer generally has to do that if they're going to continue to represent the client.
No. of Recommendations: 3
That was one of the depredations of chattel slavery
Exactly. It had to do with slaves born in this country and/or people who were brought here legally (via the law structure of the time, while allowed slavery).
What does it say about illegal immigration?
No. of Recommendations: 0
So the judge castigating the lawyer wasn't really appropriate. He was just doing his job as laid out in whatever rulebook lawyers have (I suspect the bar has something).
As long as he/she wasn't lying or committing fraud, of course (which, from what I read, it didn't seem like that was the case).
The judge's ire should have been directed at the Felon.
No. of Recommendations: 1
Exactly. It had to do with slaves born in this country and/or people who were brought here legally (via the law structure of the time, while allowed slavery).
What does it say about illegal immigration?
It doesn't. There is no exception carved out for illegal immigration. Only for those not subject to the jurisdiction of the US government (like diplomats, occupying armies, etc). Nor does it specify (or restrict itself) to slaves. Therefore, a child born of a migrant (legal or otherwise) is a citizen. QED.
No. of Recommendations: 14
Exactly. It had to do with slaves born in this country and/or people who were brought here legally (via the law structure of the time, while allowed slavery).
Would have applied to people who were brought here illegally, too. When slavers kidnapped people and brought them into the U.S. after it was no longer legal to import slaves (from 1808 onward the importation of slaves was illegal, but many tens of thousands were imported anyway), all of their children and descendants were U.S. citizens. Didn't matter that they were brought here illegally.
What does it say about illegal immigration?
Nothing. People who have crossed the border illegally are still fully and completely subject to the jurisdiction of the United States and the state they are in. So their kids are citizens upon birth. Just like every other kid. Just like every other kid whose parents might have committed a crime in the past, or who might even be committing an ongoing crime - as long as their parents are subject to the jurisdiction of the U.S., the government cannot impose a disability on a newborn baby based on something their parents might have done before the baby was born. Everyone born in the U.S. is born with the protections against government that come with citizenship, so that we can never have a situation where a newborn baby is devoid of those protections again.
No. of Recommendations: 2
It doesn't.
Correct. It doesn't, never has, and in fact, the Supreme Court has never ruled on illegal immigration with respect to the 14th Amendment.
While you people are chortling over what the judge said, the context that you're missing (surprise, surprise) is that Trump knew that the coast states would run to a Hawaii Obama judge or some other lib coastal dude and get exactly this ruling with exactly this reasoning.
What, you guys actually think Trump really believed this order would go through and *wouldn't* get TRO'd within 5 minutes? LOLOLOL. Of course he knew it would get thrown out.
This case was always destined for a final stop in the Supreme Court.
No. of Recommendations: 7
So the judge castigating the lawyer wasn't really appropriate.
Sure he was. Just because a client tells you to make a stupid argument in court doesn't mean the judge can't (or shouldn't) properly identify it as a stupid argument. The "bar member" comment was a way of signaling to the lawyer that this argument was real close to the line where the duty of candor to the tribunal would prohibit standing in open court and saying the rule is constitutional.
No. of Recommendations: 1
as long as their parents are subject to the jurisdiction of the U.S., the government cannot impose a disability on a newborn baby based on something their parents might have done before the baby was born.
So being a citizen of Mexico, Guatemala or someplace is a 'disability', and it's the obligation of the United States to 'cure' that by offering immediate citizenship? That logic will be fun to watch unfold in this case.
No. of Recommendations: 9
Correct. It doesn't, never has, and in fact, the Supreme Court has never ruled on illegal immigration with respect to the 14th Amendment.
They also never ruled on whether it applied to women. Or to people that were from Mexico instead of China. Or to people born after 1900.
The language of the Amendment is unequivocal. It doesn't have a carve out for people who crossed the border illegally. Those people are fully subject to the jurisdiction of the United States, just as much as a slave that was imported here illegally - and just like the slaves' children could no longer be deprived of citizenship just because of their parents' status, so too is it forbidden for the government to create an inferior class of infants based on the status of their parents.
While you people are chortling over what the judge said, the context that you're missing (surprise, surprise) is that Trump knew that the coast states would run to a Hawaii Obama judge or some other lib coastal dude and get exactly this ruling with exactly this reasoning.
The judge was a Reagan appointee.
No. of Recommendations: 7
So being a citizen of Mexico, Guatemala or someplace is a 'disability', and it's the obligation of the United States to 'cure' that by offering immediate citizenship?
No - the government can't impose the "disability" of not having U.S. citizenship on a person who is born here.
The argument is idiotic. People who are citizens of other countries are no less subject to the jurisdiction of the U.S. than anyone else - so their newborn babies are citizens of the U.S. under the 14th Amendment.
No. of Recommendations: 2
They also never ruled on whether it applied to women.
Hmm. Does the 1st Amendment only apply to women? Or the 4th, or the 2nd or the 6th?
What do women who are American citizens have in common with men who are American citizens? Welp, they're both American citizens.
The judge was a Reagan appointee.
He's a Seattle judge. Reagan also didn't have the Federalist Society IIRC back then telling him not to nominate This or That person.
No. of Recommendations: 5
The judge was a Reagan appointee.
Heh.
The only chortling is over Dope's failed attempts to try to reframe this as if it had any legal legitimacy.
No. of Recommendations: 7
Hmm. Does the 1st Amendment only apply to women? Or the 4th, or the 2nd or the 6th?
What do women who are American citizens have in common with men who are American citizens? Welp, they're both American citizens.
Right. The 14th Amendment does not, by its terms, apply only to American citizens. The whole point of it was to apply to the children of people who weren't American citizens, like slaves.
The 14th Amendment does not distinguish between people who crossed the border lawfully or unlawfully - just whether they are subject to the jurisdiction of the U.S. Which people physically present in the U.S. almost exclusively are, including people who crossed the border unlawfully or overstayed their visa or are here on a green card.
He's a Seattle judge. Reagan also didn't have the Federalist Society IIRC back then telling him not to nominate This or That person.
He's also not a Democratic appointee, as you wrongly speculated in your post.
No. of Recommendations: 1
The only chortling is over Dope's failed attempts to try to reframe this as if it had any legal legitimacy.
Failure.
As I explained to you, this was always going to get shot down by the first judge that saw it.
The 9th Circuit (where Seattle rolls up to) will also shoot it down.
Where this will be fought out for good is in the Supreme court. Where it was always intended to be.
No. of Recommendations: 2
Right. The 14th Amendment does not, by its terms, apply only to American citizens. The whole point of it was to apply to the children of people who weren't American citizens, like slaves.
And the Supremes will rule on who it does apply to.
He's also not a Democratic appointee, as you wrongly speculated in your post.
I know he was appointed by Reagan. Again, an unfortunate trait of the dumber members of this board is to try and score points in posts. It really doesn't, so please don't emulate that behavior.
No. of Recommendations: 10
And the Supremes will rule on who it does apply to.
Not necessarily. SCOTUS review is discretionary. If they agree with the lower court decision, they don't have to take up the case - and they almost never do, if they think the lower court got it right. So unless there are four votes on the Court supporting the Administration's theory, this might not even get to SCOTUS.
I know he was appointed by Reagan. Again, an unfortunate trait of the dumber members of this board is to try and score points in posts. It really doesn't, so please don't emulate that behavior.
You said something that was incorrect, so I replied with the correct facts. That's not scoring points - I didn't case aspersions on you or say anything negative about you. I didn't say anything more than that the judge was a Reagan appointee.
No. of Recommendations: 1
The "bar member" comment was a way of signaling to the lawyer that this argument was real close to the line where the duty of candor to the tribunal would prohibit standing in open court and saying the rule is constitutional.
Is this a place where word choice becomes very critical?
Don't say, "This order is constitutional."
Instead say, "Our argument is that this order is constitutional." Or maybe, "My client believes the order is constitutional."
Give the subtle hint back to the judge that you are arguing your client's position as your professional duty requires you do to.
--Peter
No. of Recommendations: 0
Not necessarily. SCOTUS review is discretionary.
Sure, they could not take this case. That's they're choice. It's highly unlikely that they wouldn't given its status as one of the hot button issues of the day.
No. of Recommendations: 0
The argument is idiotic. People who are citizens of other countries are no less subject to the jurisdiction of the U.S. than anyone else - so their newborn babies are citizens of the U.S. under the 14th Amendment.
Unless of course, if those foreign citizens are diplomats. So, just declare that all "illegal immigrants" are foreign diplomats. Problem solved. 😊
No. of Recommendations: 7
It's highly unlikely that they wouldn't given its status as one of the hot button issues of the day.
No, it's pretty likely. After all, one of the Court's favorite pastimes is to decline to rule on "hot button issues of the day" when they can dispose of those things on arcane minutia like standing or ripeness - and they deny cert (refuse to hear the case) on "hot button issues" all the time.
They almost never hear a case if a majority agrees with the lower court's decision, even if it deals with a controversial issue, except to resolve a split in the circuits. If there's no split, there's no reason for the SCOTUS to weigh in - they can just deny cert. There's nothing going on they disagree with, so they let it stand - there's no incorrect application of law that needs to be resolved via the Judicial power.
No. of Recommendations: 0
No, it's pretty likely.
Guess we'll have to see, won't we?
No. of Recommendations: 4
Guess we'll have to see, won't we?
Sure, though not for quite a while, for sure. The SCOTUS doesn't get asked to even take up the case until it's gone through both district and circuit court review, which will take a year or two, if not longer. The EO is likely to be enjoined for the duration, which makes it unlikely the courts will expedite - and the challengers will have every incentive to drag their feet. And if the DOJ can't get this to the Court for their 2027 term (which requires getting a circuit court decision by January 2027), then it won't be decided during Trump's Presidency anyway; so getting a quick path to the circuit court might not be something they want to spend resources on either.
No. of Recommendations: 2
Well, let's let this play out. I'm sure you won't let me forget that I said this will crash and burn. I won't let you forget that it will survive SCOTUS (and be affirmed, presumedly).
Then I can say "failure" to you (which I will). This was doomed even before the ink on the EO dried.
No. of Recommendations: 2
Well, let's let this play out. I'm sure you won't let me forget that I said this will crash and burn. I won't let you forget that it will survive SCOTUS (and be affirmed, presumedly).
I made no prediction as to what SCOTUS would do. I merely think they'll take it up.
Either way, this deserves a full hearing in front of the USSC.
And since this board is devolving into score keeping, I can play that game also.
No. of Recommendations: 7
Is this a place where word choice becomes very critical?
Don't say, "This order is constitutional."
Instead say, "Our argument is that this order is constitutional." Or maybe, "My client believes the order is constitutional."
Give the subtle hint back to the judge that you are arguing your client's position as your professional duty requires you do to.
A good point.
This also may be an unintended (but expected) consequence of the incoming Administration's approach to secrecy with the initial blitz of EO's. AIUI, they didn't have these EO's vetted by DOJ lawyers as part of the transition (as would normally happen). They didn't want leaks. Instead, they used outside counsel.
That might provide a tactical edge in some cases, since opponents of any given EO may have less time to prepare. But the flip side is that the actual DOJ lawyers who have to defend the EO in court are seeing these things with fresh eyes, too, and only have a few days to get up to speed. You'd expect a request for an immediate temporary restraining order, and normally you'd want to be fully prepared with your best arguments already polished up for that TRO hearing - it's when the judge will form their first impression of your argument.
There's nothing inherently wrong with presenting a really novel argument, and asserting it firmly - but if the judge also thinks you haven't done the preparation that asking for a novel argument requires, they can get testy.
No. of Recommendations: 5
I'm not keeping score. I'm just tired of your predictions about horrible things dems will do (e.g. riots in January either during certification or the inauguration...neither happened), and then you claiming that's not what you said.
Since you aren't saying you predict what SCOTUS will do, we'll let that go.
But I agree with albaby...this will almost certainly not make it to SCOTUS. I suspect for a lawyer, this is Constitution 101. So basic it doesn't need to go before the Court. At least not this EO. He did several versions of the Muslim Ban, each a bit different. He could do that here, too.
No. of Recommendations: 2
I'm not keeping score. I'm just tired of your predictions about horrible things dems will do (e.g. riots in January either during certification or the inauguration...neither happened), and then you claiming that's not what you said.
Uh, huh.
But I agree with albaby...this will almost certainly not make it to SCOTUS.
Welp, we can all agree to disagree. He's banking on Roberts being his usual "avoid anything that rocks the status quo" self but what he forgets is that when these bills go to conference the justices vote on what they take up.
Something like this - significant Constitutional ambiguity with proven significant economy, social and national security ramifications - is almost assured a hearing in front of the court.
No. of Recommendations: 6
Welp, we can all agree to disagree. He's banking on Roberts being his usual "avoid anything that rocks the status quo" self but what he forgets is that when these bills go to conference the justices vote on what they take up.
Something like this - significant Constitutional ambiguity with proven significant economy, social and national security ramifications - is almost assured a hearing in front of the court.
Roberts is well aware that cert petitions go to conference for a vote. Again, my point was that the Court won't take cert unless there's a majority that actually disagrees with the lower court ruling. If there's a majority of Justices who agree with the Ninth or First Circuit's (likely) finding that this is unconstitutional, then it's unlikely the minority would press for cert review. (Note there's also always the possibility that a lower court does something the SCOTUS disagrees with on an issue other than the merits, like standing or process, that might generate a cert review while the merits go unaddressed).
There's no "significant Constitutional ambiguity." The current interpretation of the 14th Amendment - that it covers all the people the EO tries to deny citizenship to - is the overwhelming mainstream interpretation. To the point where the contrary interpretation isn't even a minority construction - it's a fringe belief. There's no court that's ever agreed with it at any level (AFAIK). It's not being seriously being promoted in academic literature. It's never been thrown out there, even in dicta in a dissent, by any Justice.
The Court generally weighs in only when there is a live dispute over what the law is - either a dispute between parties in a case that requires resolution or a split between how the different circuits are applying the law. Right now there's a live dispute, but it's in the process of being ruled upon. If the circuit courts interpret the law and the SCOTUS thinks they're getting it right, there's no need for them to weigh in. As long as the law is always being applied in the way the Court thinks is correct, they generally won't act.
Because I'm pretty sure there aren't five votes on the Court to support this theory, I don't think they'll grant cert - but I'm dead sure they won't grant cert just to affirm the lower court holding in full. They just don't do that absent a split in the circuits or an exigent deadline that doesn't allow for the circuits to weigh in.
No. of Recommendations: 2
There's no "significant Constitutional ambiguity."
Oh?
Do the words "illegal", "undocumented" or "immigrant" appear in there?
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In 1938 or whenever this was first argued there was not the series of issues we have now.
The Court generally weighs in only when there is a live dispute over what the law is - either a dispute between parties in a case that requires resolution or a split between how the different circuits are applying the law. Right now there's a live dispute, but it's in the process of being ruled upon. If the circuit courts interpret the law and the SCOTUS thinks they're getting it right, there's no need for them to weigh in. As long as the law is always being applied in the way the Court thinks is correct, they generally won't act.
Sure. The question is, has anything changed since the last time the Supremes looked at this. I'd say it has.
Was birth tourism a thing back then?
No. of Recommendations: 6
Do the words "illegal", "undocumented" or "immigrant" appear in there?
No. They also don't appear in the Sixth Amendment, either. That doesn't create an ambiguity over whether (say) the Sixth Amendment applies to people who are "illegal," "undocumented" or "immigrant" - whether they're entitled to a trial by jury before being convicted of a crime and imprisoned. They are. The absence of limiting words doesn't create an ambiguity. It means there is none.
The question is, has anything changed since the last time the Supremes looked at this.
That's not the question. I think you misunderstand the point.
SCOTUS doesn't solely look at whether a question has a lot of consequences or impacts. It looks at whether there's a legal dispute that needs resolving. If all the lower courts are interpreting the law correctly (ie. the way a majority of the SCOTUS believes it should be interpreted), there's no need to intervene. It doesn't matter how consequential the subject matter is - if the lower courts are getting it right, the SCOTUS won't waste their time, because there's nothing that needs fixing.
If the lower courts and the SCOTUS are all on the same page, then there's no ambiguity that needs to be addressed. Everyone's getting it right. So no need for cert.
Cert will only be granted if there's a majority on the Court that thinks the Ninth or First got their decision wrong. They won't grant cert. just to affirm.
No. of Recommendations: 1
No. They also don't appear in the Sixth Amendment, either. That doesn't create an ambiguity over whether (say) the Sixth Amendment applies to people who are "illegal," "undocumented" or "immigrant" - whether they're entitled to a trial by jury before being convicted of a crime and imprisoned. They are. The absence of limiting words doesn't create an ambiguity. It means there is none.
That's one way to look at it. Another way is, are the benefits of being a US citizen a fundamental right in the same way as Bill of Rights protections are? That's the crux of this debate.
According to immigration activists, they are, and thus anyone who shows up here is automatically entitled to effectively grant that to their children no matter what the parents did to arrive here.
SCOTUS doesn't solely look at whether a question has a lot of consequences or impacts. It looks at whether there's a legal dispute that needs resolving. If all the lower courts are interpreting the law correctly (ie. the way a majority of the SCOTUS believes it should be interpreted), there's no need to intervene. It doesn't matter how consequential the subject matter is - if the lower courts are getting it right, the SCOTUS won't waste their time, because there's nothing that needs fixing.
I'm aware of this. You seem to be basing your argument that the Supremes will just agree that all the lower courts are going to get this "right", with the definition of "right" being the current state of things. If that's the case then sure, they wouldn't touch it. That may happen or that may not happen.
Cert will only be granted if there's a majority on the Court that thinks the Ninth or First got their decision wrong. They won't grant cert. just to affirm.
Uhhhh...yeah. If the 9th Circuit chooses to uphold the Seattle judges decision, and they will, the Supremes will still look at this and decide if they want to take it up. Just as they do every other case.
No. of Recommendations: 6
Another way is, are the benefits of being a US citizen a fundamental right in the same way as Bill of Rights protections are?
It's the most fundamental right. By the time of the Civil War, the importation of new slaves had been prohibited for nearly sixty years. New slaves were created by denying to newborn children the right of citizenship. Given life expectancy at the time, nearly every slave that existed in 1865 would have been a slave because their parents weren't citizens. Or were illegals. Slavery existed because States and Congress had the power to say that babies born in the U.S. would be denied all of the protections of citizenship because of who their parents were. So that power was taken away from the government. All babies born in the U.S. that aren't immune from its jurisdiction (like ambassadors) - are automatically citizens. The government can't deprive them of that any more.
Just like we told the government that they can't imprison someone without a trial, we told them they can't take someone born in this country and decide they're not a citizen. It's the ultimate fundamental right.
No. of Recommendations: 4
I don't know if there's such a thing as "settled law", but from what I'm reading (and what you've written), this does appear to be as close to "settled law" as something can get. There's 150 years of jurisprudence/precedent behind it. The only exceptions carved out appear to be people not under the jurisdiction of the US government, like diplomats, and occupying armies (which we don't presently have).
The administration would (somehow) have to get the illegal migrants classified as either diplomats or an occupying army, or something I haven't though of, first.
And, of course, that doesn't deal with asylum-seekers. That is by far the majority of migrants we have to deal with today, and they aren't criminals (or illegal). Asylum is a legal request. The right seems to forget that a lot.
No. of Recommendations: 2
Just like we told the government that they can't imprison someone without a trial, we told them they can't take someone born in this country and decide they're not a citizen. It's the ultimate fundamental right.
I hadn't thought about it in quite those terms, but I think you nailed why this is as close to "settled law" as you can get. You wouldn't want to give the government a nanometer of wiggle room on a subject as profound as that.
No. of Recommendations: 1
All babies born in the U.S. that aren't immune from its jurisdiction (like ambassadors) - are automatically citizens. The government can't deprive them of that any more.
In reference to slaves...who were brought to the US legally per the laws - however distasteful - back then.
But what about birth tourism? What about people here illegally? Neither of those were a thing back in 1868.
No. of Recommendations: 1
I don't know if there's such a thing as "settled law", but from what I'm reading (and what you've written), this does appear to be as close to "settled law" as something can get.
Really? Roe v. Wade. Was that "settled law"?
The Supremes have not ruled on this aspect of the 14th Amendment.
I get that you guys want to wave your hands and declare this a nonissue, but that's not going to work.
No. of Recommendations: 6
But what about birth tourism? What about people here illegally? Neither of those were a thing back in 1868.
But all of those people are subject to the jurisdiction of the United States. So they're all covered by the 14th Amendment. It's not legally relevant whether they have any other attribute. The 14th Amendment doesn't say that it doesn't apply to people who are here on tourist visas. Or who crossed the border illegally (or who crossed the border legally, but overstayed their visas). Or any other category of people, whether it was a thing in 1868 or not.
I'm not sure what you (or the folks pushing this theory) thinks the ambiguity is. This clause of the 14th Amendment only has one condition. It says affirmatively that it applies anyone born in the U.S. who is subject to the jurisdiction of the U.S. All of those people are subject to the jurisdiction of the U.S. So they'd all be covered.
No. of Recommendations: 1
I'm not sure what you (or the folks pushing this theory) thinks the ambiguity is.
In his defense, he's considering the context in 1868. Specifically, slavery. He appears to be saying that this should only apply to slavery (and, if I extrapolate, he may even be saying it is obsolete). You're saying -quite correctly- that in almost 160 years, the courts have not seen it that way.
Similar to my argument regarding abortion and the 13th Amendment. That was specifically targeting slavery, but it's verbiage also includes "involuntary servitude". If a woman is pregnant, and doesn't want to be, then (IMO) she is in involuntary servitude. Therefore, abortion is protected by the 13th.
Correct me if I'm wrong, but I don't think the courts generally consider the context of the law, but focus on the text of the law. So Dope's argument falls flat, and my argument has merit. Again, IMO. (And I'm not trying to speak for Dope, so if he disagrees with my characterization of his position, I will defer on that point.)
No. of Recommendations: 0
But all of those people are subject to the jurisdiction of the United States. So they're all covered by the 14th Amendment.
Well, that's the interpretation of it, isn't it?
I mean, it's not like other amendments have been subject to varying degrees of interpretation over the years like say, the 2nd.
No. of Recommendations: 2
Really? Roe v. Wade. Was that "settled law"?
Not really. In fact, while albaby explained the basis for Roe, and I understood it, I always thought it was a little weak. I still think grounding it in the 13th is a better approach.
I get that you guys want to wave your hands and declare this a nonissue, but that's not going to work.
I would argue your syntax. It is an issue (illegal immigration). But birthright citizenship isn't. That has been settled for nearly 160 years, and albaby gave the best reason I've ever read.
But the mechanics of all this can be very complicated, and there likely are novel situations that will arise that need to be adjudicated. Just as a "for example":
Some non-seekers of asylum sneak across the border, and end up having a baby here. They are caught. They are clearly deportable. But is the baby? I have my own opinion how this should be handled, but maybe the law wouldn't allow it (I don't know). Stuff like that would be an issue, and would likely need the courts to decide.
But if you are born here under the jurisdiction of the US, then you are a citizen, and the government can't decide you aren't. You don't want the government to have that kind of power. Very few people would want that.
No. of Recommendations: 13
Well, that's the interpretation of it, isn't it?
I mean, it's not like other amendments have been subject to varying degrees of interpretation over the years like say, the 2nd.
But that's the point. What's the varying interpretation?
With other Amendments, there have been disputes over what the terms meant - whether the "right to bear arms" is a personal or collective right, or whether "speech" included false statements. But here, there doesn't seem to be any alternative interpretation. There's no dispute about whether these kids were born in the United States. And there isn't any dispute that they're subject to the jurisdiction of the United States. I don't think anyone's ready to argue that the parents have any of the jurisdictional exemptions or legal immunities from the enforcement of state or federal laws that diplomats or members of sovereign native tribes enjoy.
So other than not wanting the Amendment to say what it says, what's the interpretation being advanced here?
No. of Recommendations: 1
Some non-seekers of asylum sneak across the border, and end up having a baby here. They are caught. They are clearly deportable. But is the baby? I have my own opinion how this should be handled, but maybe the law wouldn't allow it (I don't know). Stuff like that would be an issue, and would likely need the courts to decide.
Well, yeah. That's the crux of this entire thing: you're caught doing an illegal thing. You are in violation of the US criminal code. Why should children you have be afforded US citizenship, as the fruit of the illegal act?
All questions that need to be resolved.
No. of Recommendations: 9
Well, yeah. That's the crux of this entire thing: you're caught doing an illegal thing. You are in violation of the US criminal code. Why should children you have be afforded US citizenship, as the fruit of the illegal act?
Because that's what the Constitution says. The newborn didn't commit an illegal act, and the newborn shouldn't be deprived of their rights just because their parents did something wrong. And we decided a long time ago that anyone born here was entitled to be a citizen (as long as they're subject to the jurisdiction of the U.S.), and this baby clearly and unambiguously is. So we don't strip her of her rights.
No. of Recommendations: 2
Well, yeah. That's the crux of this entire thing: you're caught doing an illegal thing. You are in violation of the US criminal code. Why should children you have be afforded US citizenship, as the fruit of the illegal act?
All questions that need to be resolved.
But, as has been explained, that particular question [my bold] is resolved with a very unambiguous amendment (the 14th). The US government does not have the power to declare someone born here not to be a citizen. It's really that simple. And, as I said, you wouldn't want them to have that power. That would be ripe for abuse.
Remember, the Constitution generally limits the power of the government, not expands it. The 14th is one such example.
No. of Recommendations: 5
Correct me if I'm wrong, but I don't think the courts generally consider the context of the law, but focus on the text of the law. So Dope's argument falls flat, and my argument has merit. Again, IMO. (And I'm not trying to speak for Dope, so if he disagrees with my characterization of his position, I will defer on that point.)
You're not wrong. Well, I'm pretty sure you're wrong about the substance of the 13th Amendment. But you're correct that you're making an interpretive argument, while Dope is not.
You're arguing that the term "involuntary servitude" can be interpreted to include the condition of an unwanted pregnancy, and therefore is prohibited by the 13th Amendment.
Dope is arguing that the term....well, I don't know what's being argued there. The argument doesn't seem to be that these groups of people aren't "subject to the jurisdiction of the U.S.," both because they clearly are and because the consequences of arguing they are not are astronomically bad (imagine if they were all immune from criminal prosecution!). The argument isn't that they were born in the U.S., either. So there's no interpretative argument there - nothing to hand to any court about why they can limit the application of the Amendment.
No. of Recommendations: 2
AIUI, they didn't have these EO's vetted by DOJ lawyers as part of the transition (as would normally happen). They didn't want leaks. Instead, they used outside counsel.
On a little further research, it looks like they had an outside counsel in court - a guy named Brett Shumate who is (or maybe was until a couple of days ago) a partner at Jones Day. Apparently, the exchange related up thread happened less than a minute into the on the record conversation between the judge and Shumate.
--Peter
No. of Recommendations: 3
In 1938 or whenever this was first argued there was not the series of issues we have now.
Not precisely these issues, but trying to deny birth citizenship for everyone but whites was done in Dred Scott.
In the Dred Scott case,1 (1857) however, Chief Justice Roger Taney, writing for the Court, ruled that this rule did not apply to freed slaves. The Court held that United States citizenship was enjoyed by only two classes of people: (1) White persons born in the United States as descendants of "persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, [and who] became also citizens of this new political body," the United States of America, and (2) those who, having been "born outside the dominions of the United States," had migrated thereto and been naturalized therein.2 Freed slaves fell into neither of these categories.
The Court further held that, although a state could confer state citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Even a free man descended from a former slave residing as a free man in one of the states at the date of ratification of the Constitution was held ineligible for citizenship.3 Congress subsequently repudiated this concept of citizenship, first in section 14 of the Civil Rights Act of 18665 and then in Section 1 of the Fourteenth Amendment. In doing so, Congress set aside the Dred Scott holding, and restored the traditional precepts of citizenship by birth.6
The 14th Amendment was in 1868.
The Civil Rights Act of 1866, which declared that all people born in the United States were U.S. citizens and had certain inalienable rights, including the right to make contracts, to own property, to sue in court, and to enjoy the full protection of federal law.
The issues we have now are nothing new. Chain migration is a name for a phenomena that was going on before the US became a nation. Canada has birth citizenship, how do they handle concealed pregnancy for purposes of obtaining citizenship? There are many countries with birth citizenship.
If you make an amendment to change birth citizenship and are reasonable it may go the distance and be ratified. You could probably get a requirement that at least one parent be a US citizen ratified, as that is reasonable, and the slavery issue seems to be over. But an EO? No.
No. of Recommendations: 2
You're arguing that the term "involuntary servitude" can be interpreted to include the condition of an unwanted pregnancy, and therefore is prohibited by the 13th Amendment.
I don't want to hijack here, but I did want to make my argument clear so as to contrast his argument on the 14th. There are a few conditionals in mine. If the fetus is not a "human person", then there is nothing to discuss. Abortion is allowed. My point is that if the fetus is adjudicated to be a person -as many assert-, then the 13th applies because you then have one person forcing another into servitude against their will (if it's unwanted). That, then, becomes relevant territory for the 13th.
Dope isn't arguing terms at all, as near as I can tell. He's arguing context of the original law (amendment), and then appealing to not-law of "why should they benefit from misbehavior".
Which does have some precedent (i.e. benefits from misbehavior). I believe if you commit a crime, you forfeit all benefit derived from that crime. But, as you say, the child born here committed no crime. Maybe the parents did, but the child did not. So, that would not apply. As you said. And I don't believe context is relevant in law, just the text (or "letter of the law").
No. of Recommendations: 2
And we decided a long time ago that anyone born here was entitled to be a citizen (as long as they're subject to the jurisdiction of the U.S.), and this baby clearly and unambiguously is. So we don't strip her of her rights.
Did we? That's the context. Illegal actions from parents never factored into this - remember that slaves bought or born here were considered in the United States by perfectly legal (at the time) means...
In the current context, we have people intentionally breaking US law and having kids here to make them citizens, to enable the parents to stick around. Or you have folks entering the United States *legally* say, via tourism, and having a kid here who gets to claim citizenship. Neither action is really in line with the original intent of the 14th Amendment.
No. of Recommendations: 2
Remember, the Constitution generally limits the power of the government, not expands it. The 14th is one such example.
But this is NOT how the courts have interpreted the Constitution over the years.
Do you think you have the right to yell "fire" in a crowded theater?
Or how about to own a machine gun?
The Constitution as taken literally would suggest 'yes' and 'yes' but not very many left wingers would agree with either question.
How ironic that in this instance it's the left taking the Originalist position on the Constitution and the right taking the 'living document' side.
No. of Recommendations: 8
Dope isn't arguing terms at all, as near as I can tell. He's arguing context of the original law (amendment), and then appealing to not-law of "why should they benefit from misbehavior".
Dope was arguing that the current issues on birthright citizenship and illegal immigrant parents weren't contemplated in 1868. We had the Chinese Exclusion Act in 1822, and our history is pretty much hostile to immigration. At one point we limited immigration to Western Europe - didn't like Zsa Zsa.
What Dope hasn't taken into account is that some of the Constitution isn't clear, can be interpreted, and there isn't much to explain what it meant back then, and other parts are clear, unambiguous, and there's a lot of contemporaneous documentation to look at too. Those are two ends of the range, but birthright citizenship is the latter.
The other thing that's been pointed out is that the Supreme Court not picking it up *IS* a decision, so if that happens he gets a decision, but not the one he wants.
If Dope doesn't like what the Constitution unambiguously says and that is supported by all the historical docs, then he makes up reasons to support what Fearless Leader has proclaimed.
No. of Recommendations: 2
If Dope doesn't like what the Constitution unambiguously says and that is supported by all the historical docs, then he makes up reasons to support what Fearless Leader has proclaimed.
So I can have a machine gun and a rocket launcher. Why you little Originalist, you.
Debate jiu-jitsu. Status: complete.
No. of Recommendations: 2
So I can have a machine gun and a rocket launcher. Why you little Originalist, you
You can have a machine gun. Just pay the fees, take the courses, get the safe, and pass the background checks. The rocket launcher? I'm afraid you might be disappointed. The grenade launchers people have don't fire grenades. Instead they have a device that allows ~10 rounds to be fired simultaneously in it. So you may get a rocket launcher that allows you to fire 10 bullets simultaneously, or some other similar disappointment.
It's plain as day I'm not an originalist. :)
No. of Recommendations: 2
Some non-seekers of asylum sneak across the border, and end up having a baby here. They are caught. They are clearly deportable. But is the baby?
If the dividing line is sneakers vs non-sneakers, are all births by non-sneakers to be citizens?
Applicants for asylum are undeniably 'under the jurisdiction'
People with valid visas-
Student,
Employees,
Tourists,
Seasonal farm workers?
No. of Recommendations: 11
Dopey: Why should children you have be afforded US citizenship, as the fruit of the illegal act?
American females who are raped; still chattel who must bear 'the fruit of an illegal act.'
