Birthright citizenship

[All4You]

Like TB I am no fan of EO's, especially when used to circumvent and take decisions out of the hands of our elected representatives, but I don't agree with TB's call to limit the EO to such a degree. The number on a annual basis never eclipsed 50 per prior to Teddy Roosevelt. They mushroomed to hundreds per year for the next half century (albeit coinciding with two world wars, the stock market crash, the great depression etc), but didn't drop below 50 per year until the Reagan administration and have stayed under that number since. Now, how we interpret the 14th in relation to our current issues with birth tourism and anchor babies is anybody's guess.

On a side note, is using babies for anchors the best use for babies? Or when considering their natural buoyancy, the best choice for an anchor? Also, wouldn't hiring babies as anchors already be covered under our myriad child labor laws? TIA for you consideration

 

[UncleMark]

I thought Noodle's point was that you could only do it if (1) the SOC goes along; and (2) it would have to apply retroactively. He thought (2) made (1) even more unlikely. But perhaps I misunderstood.

To apply it retroactively by executive order would be unthinkable. I can't imagine anyone could argue that the executive should have the power to unilaterally determine who is or is not a citizen. But, if it's not applied retroactively, the equal protection clause is nullified, again by executive order. Equally unthinkable.

Therefore, the whole thing is unthinkable.

That may not be Noodle's position, but it's where his post pointed me.

 

[IUCrazy2]

I couldn't care less what you claim to think about it (and in any event what you just posted is gibberish). I'm interested in the thoughts of people who actually know what they're talking about, like distinguished history professor Stephen Kantrowitz, whose scholarship specifically addresses this issue.

Richard Cranium ladies and gentlemen. Shows up to a message board and wonders why people are leaving their opinion. Amazes everyone with Google powers.

 

[Rockfish1]

Richard Cranium ladies and gentlemen. Shows up to a message board and wonders why people are leaving their opinion. Amazes everyone with Google powers.

Why should anyone care what (for example) your opinion is on this constitutional question? Why should anyone care what (for example) my opinion is on a subject I know nothing about?

Every time some partisan dispute arises, constitutional “experts” materialize to claim that the Framers intended whatever policy prescription they happen to prefer. I couldn’t care less about any of that.

 

[hoot1]

Given that those visiting this country on a tourist visa are here legally, how can we label them "illegals" ?

 

[Thyrsis]

Why should anyone care what (for example) your opinion is on this constitutional question? Why should anyone care what (for example) my opinion is on a subject I know nothing about?

Every time some partisan dispute arises, constitutional “experts” materialize to claim that the Framers intended whatever policy prescription they happen to prefer. I couldn’t care less about any of that.

Beyond that, I'm sure someone will be around shortly to tell you that you're just shouting down people you disagree with ... as though you're a thin crust fan and you can't abide deep dish fans.

Th "people you disagree with" mischaracterization won't go away no matter how many times its inaccuracy is pointed out.

 

[IUCrazy2]

Why should anyone care what (for example) your opinion is on this constitutional question? Why should anyone care what (for example) my opinion is on a subject I know nothing about?

Every time some partisan dispute arises, constitutional “experts” materialize to claim that the Framers intended whatever policy prescription they happen to prefer. I couldn’t care less about any of that.

Ok then, why even come to a forum such as this to have the discussion then? I know you apparently have beef with CoH but could you have not just left it at, "this is what so and so says on the topic"?

It was the gratuitous potshot at someone leaving an opinion on a forum that is for just that. This is actually a topic that I think might fall differently than just partisan lines, you have a counter viewpoint to offer that those of us who have not made up our minds might be interested in. Deliver your counter opinion, you did not need the gratuitous shot at the beginning, particularly when he had not said anything objectionable to you in the thread.

 

[twenty02]

I believe Noodle's point is that if you don't retroactively pull citizenship, then the 14th guarantee of equal protection is shredded. Which can't be done. Therefore, changing the current law short of an amendment can't be done. At least that's how I'm seeing it.

Not sure I agree with that position. You (he) may be correct, however.

DACA was an EO with specific qualifications that the executive branch just made up....regarding age, dates, etc....

 

[Fro]

Paul Ryan says it's unconstitutional (until he acts concerned and then flips)

 

[DrHoops]

This is good news for gun control! The next president can just implement an executive order saying the 2nd Amendment is no longer valid!

 

[hoot1]

This article about the myth of the "anchor baby" is a interesting addition to this thread. The article in part states the following,

The Myth of the "Anchor Baby"

It should be noted that citizenship by birth is not as carte blanche as you might believe. I often see comments on stories that talk as if a person can come across the border, have a child and stay in the country indefinitely. That isn't the way it works.

You may not be aware that the mere birth of a child in North America does not guarantee the child nor their parents the right to live in the United States or Canada, at least not until the child reaches the age of majority. Put another way, the family can be and often is removed from the U.S. or Canada, even if they have a native born child, because they do not have lawful status in the country. Some time in the future, once the child becomes an adult, they will be able to return to the U.S. or Canada, but that is down the road. It does not prevent deportation now.

Once a citizen child reaches 21 in the case of the United States and 18 in the case of Canada, that child can return to North America and eventually sponsor their parents to legally immigrate to the country of citizenship. As for education in the meantime, unless the child can show legal guardianship or custody by a U.S. or Canadian citizen that would give them permission to reside in North America, they will not be able to study here, either.
​

 

[Rockfish1]

Ok then, why even come to a forum such as this to have the discussion then? I know you apparently have beef with CoH but could you have not just left it at, "this is what so and so says on the topic"?

It was the gratuitous potshot at someone leaving an opinion on a forum that is for just that. This is actually a topic that I think might fall differently than just partisan lines, you have a counter viewpoint to offer that those of us who have not made up our minds might be interested in. Deliver your counter opinion, you did not need the gratuitous shot at the beginning, particularly when he had not said anything objectionable to you in the thread.

As you note, I have a long-running beef with CO.'s bad-faith posting. It particularly bothers me when he posts in bad faith about the law, as I think he's doing in this thread. Even on obscure internet message boards, I think that lawyers have an obligation to speak truthfully to non-lawyers about the law.

In fact, there is no doubt that the children of what we regard today as illegal immigrants are "subject to the jurisdiction" of the United States. Thus, partisan actors are claiming that, if you squint at it the right way, you can persuade yourself that the words don't mean what they plainly say. Or somewhat differently, they cherry-pick from a historical record they broadly don't understand to concoct an argument that the Framers actually intended to exclude the children of unauthorized immigrants -- even though, as a matter of historical fact, the children of non-naturalized immigrants were assumed to be citizens even prior to the passage of the 14th Amendment.

Anyway. Fine. I'm a dickhead. But I don't post in bad faith -- particularly about the law.

 

[CO. Hoosier]

I couldn't care less what you claim to think about it (and in any event what you just posted is gibberish). I'm interested in the thoughts of people who actually know what they're talking about, like distinguished history professor Stephen Kantrowitz, whose scholarship specifically addresses this issue.

Hm. I wonder how many briefs he’s written or motions argued about jurisdiction.

 

[Rockfish1]

Hm. I wonder how many briefs he’s written or motions argued about jurisdiction.

Beats me. But he knows the history of the 14th amendment, and he knows how the language of the Citizenship Clause was understood at the time.

 

[UncleMark]

DACA was an EO with specific qualifications that the executive branch just made up....regarding age, dates, etc....

DACA has/had nothing to do with citizenship. It's merely an administrative/prosecutorial rule concerning which non-citizens might be subject to immigration law enforcement/deportation. It's called "deferred action" for a reason. Yuge difference. Not comparable.

 

[IUCrazy2]

As you note, I have a long-running beef with CO.'s bad-faith posting. It particularly bothers me when he posts in bad faith about the law, as I think he's doing in this thread. Even on obscure internet message boards, I think that lawyers have an obligation to speak truthfully to non-lawyers about the law.

In fact, there is no doubt that the children of what we regard today as illegal immigrants are "subject to the jurisdiction" of the United States. Thus, partisan actors are claiming that, if you squint at it the right way, you can persuade yourself that the words don't mean what they plainly say. Or somewhat differently, they cherry-pick from a historical record they broadly don't understand to concoct an argument that the Framers actually intended to exclude the children of unauthorized immigrants -- even though, as a matter of historical fact, the children of non-naturalized immigrants were assumed to be citizens even prior to the passage of the 14th Amendment.

Anyway. Fine. I'm a dickhead. But I don't post in bad faith -- particularly about the law.

Well I can be a dick too, takes one to know one sometimes.

I don't normally wade too deep into the legal conversations because it is out of my depth. That being said, CoH is probably putting forth the type of argument you would see in the courts and you were arguing the counterpoint. One thing about the law that I have found out, particularly at the highest levels, is that original intent is not always what wins out.

 

[twenty02]

What's the odds such a EO is even being really drafted...and is just not a pure Trumpian election ploy?

 

[Rockfish1]

What's the odds such a EO is even being really drafted...and is just not a pure Trumpian election ploy?

Along those lines, here’s a take on the journamalism practiced by Jonathan Swan at Axios.

https://splinternews.com/jonathan-swan-is-a-bootlicker-1830095400

 

[UncleMark]

What's the odds such a EO is even being really drafted...and is just not a pure Trumpian election ploy?

Pretty damn good, I suspect. Still, it's a good conversation to have. Shows us the lengths the anti-immigrant proponents are willing to go.

 

[anon_mlxxvlbug9dpa]

Well, that didn't take long. You always manage to inject a skin color rant into any discussion. meh!

Here's the thing. This issue is about anchor babies. That it! There were no anchor babies when the 14th was drafted. The question is how do we apply the 14th to anchor babies.

If you want to have a demographic rant, you'd be more relevant talking about whether male and female anchor babies were to be treated equally in the middle of the 19th century.

I don’t mean this as a provocateur, because I know you side with me on semi-auto rifles and that there is no place for them in private citizenry.

So, counselor, what is different about the 14th Amendment needing amending because there didn’t use to be anchor babies from the 2nd Amendment needing amending due to the ridiculous weaponry that private citizens are easily able to attain?

 

[UncleMark]

Along those lines, here’s a take on the journamalism practiced by Jonathan Swan at Axios.

https://splinternews.com/jonathan-swan-is-a-bootlicker-1830095400

I can't recall what it was, but I'm thinking there was another recent Axios scoop that upon examination appeared to be a straight up administration trial balloon or planted story or some such.

 

[CO. Hoosier]

Beats me. But he knows the history of the 14th amendment, and he knows how the language of the Citizenship Clause was understood at the time.

Understood.

 

[CO. Hoosier]

I don’t mean this as a provocateur, because I know you side with me on semi-auto rifles and that there is no place for them in private citizenry.

So, counselor, what is different about the 14th Amendment needing amending because there didn’t use to be anchor babies from the 2nd Amendment needing amending due to the ridiculous weaponry that private citizens are easily able to attain?

I don’t think the 14th needs amending. I think the question is unresolved under the existing language. Notwithstanding our assumptions about anchor babies, which mostly results from administrative inertia, SCOTUS has never considered the question.

 

[toastedbread]

What's the odds such a EO is even being really drafted...and is just not a pure Trumpian election ploy?

The travel ban was written on the back of a napkin. Doesn't take much for this admin to actually move forward. Then the onus is on the opponents to actually fight it. Theorteically, Trump could write an executive order that all people with last names starting with the letter P will be enslaved by the government. The opponents must fight it for relief. That's how insane executive orders are.

 

[zeke4ahs]

What's the odds such a EO is even being really drafted...and is just not a pure Trumpian election ploy?

I think he’s just throwing things out this week and seeing what will stick. The border patrols, that 10% middle class tax cut we are supposed to be getting this week, and now this. I expect a few more things he has absolutely no intention of doing to come out of his mouth in this last week. He knows he’s in trouble.

 

[UncleMark]

I think he’s just throwing things out this week and seeing what will stick. The border patrols, that 10% middle class tax cut we are supposed to be getting this week, and now this. I expect a few more things he has absolutely no intention of doing to come out of his mouth in this last week. He knows he’s in trouble.

I got a piddly little raise this week. Thought for a split second that Trump had come through when I saw my bank deposit.

 

[twenty02]

Pretty damn good, I suspect. Still, it's a good conversation to have. Shows us the lengths the anti-immigrant proponents are willing to go.

I'm would not consider myself anti-immigrant...but I still question the wisdom of birthright citizenship in the year 2018. And maybe only Trump EO will push that discussion forward....even if it totally flops in court.

It was obviously a wise policy for countries in the Western hemisphere in prior centuries....as the "new world" was looking for population growth in whatever way possible.

But no countries in Europe or Asia now follow this policy. And we are only one of two (with Canada) developed nations on Earth with the policy.

https://www.politifact.com/punditfa...p-only-about-30-other-countries-offer-birthr/

 

[CO. Hoosier]

Theorteically, Trump could write an executive order that all people with last names starting with the letter P will be enslaved by the government.

What is the theory that permits this order?

 

[iu_a_att]

I'm would not consider myself anti-immigrant...but I still question the wisdom of birthright citizenship in the year 2018. And maybe only Trump EO will push that discussion forward....even if it totally flops in court.

It was obviously a wise policy for countries in the Western hemisphere in prior centuries....as the "new world" was looking for population growth in whatever way possible.

But no countries in Europe or Asia now follow this policy. And we are only one of two (with Canada) developed nations on Earth with the policy.

https://www.politifact.com/punditfa...p-only-about-30-other-countries-offer-birthr/

Can you help me out and explain your concerns? Seems to me like we need kids here.

 

[UncleMark]

I'm would not consider myself anti-immigrant...but I still question the wisdom of birthright citizenship in the year 2018. And maybe only Trump EO will push that discussion forward....even if it totally flops in court.

Any abrogation of birthright citizenship would run head first into equal protection conflicts. Parsing that would be a constitutional nightmare. Only way out I can see would be a completely new amendment or a totally rescinded/reworked 14th that would account for all the different questions being raised. Good luck with that.

 

[i'vegotwinners]

What is the theory that permits this order?

the govt has essentially done this, but it wasn't from EO, and they used date of birth instead of first letter of last name.

 

[CO. Hoosier]

Any abrogation of birthright citizenship would run head first into equal protection conflicts.

How so? I don't follow.

 

[CO. Hoosier]

hat being said, CoH is probably putting forth the type of argument you would see in the courts and you were arguing the counterpoint.

That's mostly correct. A large part of being an effective lawyer is advocacy. The law isn't static. It's dynamic, which means that lawyers are constantly pushing thousands of issues for further development.

I know various SCOTUS justices get credit for setting out advances in the law and new constitutional interpretations. That credit is often misplaced. Behind every SCOTUS opinion is a lawyer who defined a justiciable issue, did the research, and made the arguments that a court adopted.

Other lawyers sit in a cubicle and give opinions about what the law was yesterday.

 

[toastedbread]

What is the theory that permits this order?

National security.

 

[CO. Hoosier]

National security.

Okay. You don’t know what you are talking about.

 

[UncleMark]

How so? I don't follow.

Noodle's point makes this clear. Unless you make it retroactive, there would be two populations of USA born persons afforded different citizenship status based solely on date of birth. (Don't bother bringing up drinking age statutes or other bad faith bullshit.We're talking citizenship here.) And if you do make it retroactive... okay, just tell me how in the hell you revoke my next door neighbor's citizenship -- a hard working, 40-something natural born citizen born to illegal parents (who are now legal and living next door as well)?

 

[CO. Hoosier]

Noodle's point makes this clear. Unless you make it retroactive, there would be two populations of USA born persons afforded different citizenship status based solely on date of birth. (Don't bother bringing up drinking age statutes or other bad faith bullshit.We're talking citizenship here.) And if you do make it retroactive... okay, just tell me how in the hell you revoke my next door neighbor's citizenship -- a hard working, 40-something natural born citizen born to illegal parents (who are now legal and living next door as well)?

I still don’t follow. Providing an effective date for a change in law or regulation doesn’t offend equal protection for those events which occurred prior to the effective date.

 

[UncleMark]

I still don’t follow. Providing an effective date for a change in law or regulation doesn’t offend equal protection for those events which occurred prior to the effective date.

<sigh>
You don't see a difference between "a change in law or regulation" and granting or not granting citizenship to different groups of persons based solely on date of birth.

I find it interesting that of all the lawyers posting here, you are the only one who seems to have difficulty grasping the point I've been making (since Noodle pointed me in this direction). Maybe they're just humoring me.

 

[CO. Hoosier]

you are the only one who seems to have difficulty grasping the point

I grasp your point. I considered it. And I disagree with it.

 

[UncleMark]

How so? I don't follow.

I still don’t follow.

I grasp your point.

Finally! Sheesh.