Trump tries to end birthright citizenship with an executive order (2 Viewers)

[superchuck500]

I think this deserves its own thread. Perhaps we can try to migrate discussion from the other thread to this one.

Here is the Executive Order:

Protecting The Meaning And Value Of American Citizenship – The White House

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered: Section 1.

www.whitehouse.gov

The order presents itself on existing good-ground to exclude children of unlawful immigrants, but that's false - the term "subject to the jurisdiction thereof" does not have an ambiguous history.

Twenty-two states and others filed immediate lawsuits to suspend and ultimately rescind the order.

https://www.reuters.com/legal/lawsuits-challenge-trumps-birthright-citizenship-other-orders-2025-01-21/

 

[superchuck500]

 

[RobF]

As you'd expect, the lawsuits are being filed.

ACLU: https://www.aclu.org/press-releases...n-over-birthright-citizenship-executive-order (link to the complaint at the bottom of their press release).

And I think this is another one: https://abcnews.go.com/Politics/liv...guration-2025/?id=117863147&entryId=117929358

As I think we discussed way back on page 4 of this thread, the aim is presumably to get to the Supreme Court to try to get them to make a twisted interpretation of "subject to the jurisdiction thereof". Because it surely can't possibly even begin to stand up by any conventional understanding of the term.

 

[superchuck500]

As you'd expect, the lawsuits are being filed.

ACLU: https://www.aclu.org/press-releases...n-over-birthright-citizenship-executive-order (link to the complaint at the bottom of their press release).

And I think this is another one: https://abcnews.go.com/Politics/liv...guration-2025/?id=117863147&entryId=117929358

As I think we discussed way back on page 4 of this thread, the aim is presumably to get to the Supreme Court to try to get them to make a twisted interpretation of "subject to the jurisdiction thereof". Because it surely can't possibly even begin to stand up by any conventional understanding of the term.

The argument fails plain language and the original/historical view - because it was clearly intended to exclude children of diplomats and Indian tribes (at a time where tribal sovereignty was still a thing).

Alito and Thomas are clearly going to have to do some contortion on this one. But you would think that the status quo before it gets to SCOTUS will be to enjoin it.

 

[superchuck500]

Since I am paranoid I think Alito and Thomas will just say that the verbiage applied to former slaves. At least three others will follow along. Roberts might not.

I don't think this one will end up flying - there's clear SCOTUS caselaw (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) that is supported by both the plain language and the original/historical analysis. Siding with Trump on this one would be nothing more than a wildly activist Court making a policy choice.

One thing to note is that ACB opined in dicta in a decision when she was a circuit judge that the 14th Amendment was questionably adopted in the first place . . . that would be wild if she could sell that to four of the others.

 

[RobF]

So the various executive orders are up here: https://www.whitehouse.gov/presidential-actions/

There's a bunch of them that relate to this topic and I haven't got time to go through them (presumably that's partly the intent...), but the so-called "Protecting The American People Against Invasion" one - https://www.whitehouse.gov/presiden...tecting-the-american-people-against-invasion/ - has a section starting on detention facilities:

"Sec. 10. Detention Facilities. The Secretary of Homeland Security shall promptly take all appropriate action and allocate all legally available resources or establish contracts to construct, operate, control, or use facilities to detain removable aliens. The Secretary of Homeland Security, further, shall take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country, to the extent permitted by law."

I haven't analysed it on the "how far is this going to go" scale, but it doesn't look great, does it?

 

[coldseat]

I don't think this one will end up flying - there's clear SCOTUS caselaw (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) that is supported by both the plain language and the original/historical analysis. Siding with Trump on this one would be nothing more than a wildly activist Court making a policy choice.

Not saying it will this time, but we've already seen that happen with this court.

One thing to note is that ACB opined in dicta in a decision when she was a circuit judge that the 14th Amendment was questionably adopted in the first place . . . that would be wild if she could sell that to four of the others.

I guess we'll see. My question is more on the practical/application side of this. What's to stop local officials in red states across the country from taking Trump's executive order and saying that is the law of the land now and start denying citizen who are born their birth certificate or social security cards? It's not like there are non-citizen birth certificates issued. That's really the only proof we have of our citizenship. Local officials can easily ignore the SC with the help/support of their state and the federal executive branch regardless of what a district court or the SC ends up saying.

 

[superchuck500]

So the various executive orders are up here: https://www.whitehouse.gov/presidential-actions/

There's a bunch of them that relate to this topic and I haven't got time to go through them (presumably that's partly the intent...), but the so-called "Protecting The American People Against Invasion" one - https://www.whitehouse.gov/presiden...tecting-the-american-people-against-invasion/ - has a section starting on detention facilities:

"Sec. 10. Detention Facilities. The Secretary of Homeland Security shall promptly take all appropriate action and allocate all legally available resources or establish contracts to construct, operate, control, or use facilities to detain removable aliens. The Secretary of Homeland Security, further, shall take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country, to the extent permitted by law."

I haven't analysed it on the "how far is this going to go" scale, but it doesn't look great, does it?

It's central to the point I have been making all along - which is that you can't really do this in the way they're talking about doing without having to do several critical things that effectively institutionalize the capture, detention, and disposition of large numbers of people. And that not enough people have really thought about what that means.

And if they have and still support it, they're simply cruel and repulsive human beings. At that scale of course . . . if it ends up being something much more in-line with typical policies and is effective in targeting criminals, then fine.

If there's any hints already as to what the humanistic tone of this will be, Trump canceled the family-separation reunification program.

 

[superchuck500]

Not saying it will this time, but we've already seen that happen with this court.

I think that's easy to say, cynically, but I'm not sure it's actually persuasive. Dobbs and the Trump immunity rulings certainly do not fit that description.

 

[brandon]

I think that's easy to say, cynically, but I'm not sure it's actually persuasive. Dobbs and the Trump immunity rulings certainly do not fit that description.

What they do fit is having a desired outcome, and subsequently finding an interpretation that works to fit said outcome.

What we don’t see any more is any sort of willingness to suppress personal opinions in favor of precedent.

If they want it to happen, it will happen.

 

[bird]

I don't think this one will end up flying - there's clear SCOTUS caselaw (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) that is supported by both the plain language and the original/historical analysis. Siding with Trump on this one would be nothing more than a wildly activist Court making a policy choice.

One thing to note is that ACB opined in dicta in a decision when she was a circuit judge that the 14th Amendment was questionably adopted in the first place . . . that would be wild if she could sell that to four of the others.

Still paranoid. They wrongly decided Dobbs.

You might be right but this SCOTUS is nuts.

 

[superchuck500]

What they do fit is having a desired outcome, and subsequently finding an interpretation that works to fit said outcome.

What we don’t see any more is any sort of willingness to suppress personal opinions in favor of precedent.

If they want it to happen, it will happen.

I get this sentiment but I'm not sure that it's true - or that it's any different than the court has operated. First, it presumes that before this Court, the SCOTUS justices only ruled on what they thought the law was, entirely free from their own view on what the most appropriate - or even most politically expedient policy is. I just don't think that's true, we've had plenty of decisions (bad and good) that were the result of departures from existing views on the law. There have definitely been eras of where the court was more "activist" than others, we need to make sure we're not lionizing the court's history.

But also, we don't know if that's what's even happening now. Since 2017, the Court has actually seen a rise in unanimous decisions - they have become quite common. For example, 48% of the decisions from the 2022 session were unanimous, and about half of the 6-3 decisions were not along ideological lines. There have been decisions where all nine justices ruled in favor of an employee over management in the proper burden of proof in a Title VII discrimination case, or a unanimous ruling in favor of protections for corporate whistleblowers.

Does this mean that the justices are really just mercurial in what their "desired outcome" is so they can't always be predicted to fall along supposed ideological lines? I don't think so - I think the way they fall on a case is based on a number of things including what they come to believe for themselves as to what the right legal outcome is. That doesn't mean it's reasonable or appealing, but the idea that everything they do is simply reverse-engineering from the "desired outcome" is not persuasive to me.

 

[superchuck500]

Still paranoid. They wrongly decided Dobbs.

You might be right but this SCOTUS is nuts.

Believing something is wrongly decided is separate from whether the support for the opinion lacked legitimate legal basis. I think Dobbs sucks - but I also know that Roe and Casey were always on suspect constitutional grounds. One can certainly make the argument that Roe was result-oriented legal engineering more than Dobbs is. The strongest thing that Roe had going for it at the time of Dobbs was 50 years of "settled law", but there's no express language that supported Roe and the due process basis, itself, was extrapolated.

But now take the birthright citizenship provision of the 14th Amendment - that's concrete. It's much harder to engineer a result against the rules of constitutional interpretation when there's express language.

 

[bird]

Believing something is wrongly decided is separate from whether the support for the opinion lacked legitimate legal basis. I think Dobbs sucks - but I also know that Roe and Casey were always on suspect constitutional grounds. One can certainly make the argument that Roe was result-oriented legal engineering more than Dobbs is. The strongest thing that Roe had going for it at the time of Dobbs was 50 years of "settled law", but there's no express language that supported Roe and the due process basis, itself, was extrapolated.

But now take the birthright citizenship provision of the 14th Amendment - that's concrete. It's much harder to engineer a result against the rules of constitutional interpretation when there's express language.

Roe and Dobbs both suffer from one problem as do the vast majority of decisions. That problem lies with the base document itself. It forbids precisely 3 things. Those are the only actual limits on acts of legislation. The various amendments place some further restrictions as well. Thus the decisions of the SCOTUS are the personal opinions of the various justices. That various legal opinions from various other cases are cited is irrelevant. Why irrelevant? Because those are personal opinions of those judges as well.

Because the base document does not and cannot get into exact cases we are stuck with a system that allows the personal opinions of justices in various points in time to make judgements that impact the populace.

For me, Dobbs sat on the fourth amendment which is the right to be secure in their persons. Now, I am sure some legal smart azz would try to stretch this to say that it would imply any crime committed by said person would automatically be free from intrusion. So the definition of person would have to decided. But still I think it was far more solid than due process.

Using the Dobbs decision as background, Miranda would be subject to being overturned. The same potentially applies to Loving and Griswold. Obergefell is on better ground.

 

[RobF]

I don't think this one will end up flying - there's clear SCOTUS caselaw (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) that is supported by both the plain language and the original/historical analysis. Siding with Trump on this one would be nothing more than a wildly activist Court making a policy choice.

One thing to note is that ACB opined in dicta in a decision when she was a circuit judge that the 14th Amendment was questionably adopted in the first place . . . that would be wild if she could sell that to four of the others.

With the Wong Kim Ark case involving parents who were legally present ("have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China"), I would assume they're angling to argue that doesn't apply to both undocumented migrants, and migrants who have a "lawful but temporary" presence.

That seems quite a stretch, especially for the "lawful but temporary" angle - are there any grounds to argue that someone in the US legally but without permanent residency is any less subject to the jurisdiction of the United States that someone with permanent residency? - but if I was speculating (and I am) I could see them pushing an argument that an undocumented migrant isn't. Kind of an, "If a migrant is unknown to the United States federal government, then they cannot be considered to have made themselves subject to the jurisdiction of the United States," argument (with a side-order of, "and if they do make themselves known to the federal government, they get deported.").

The impression I get is that from a very quick look is that even then there's still quite a lot of precedent they'd have to ignore, e.g. I see Plyler v. Doe, 457 U.S. 202 (1982), which was about the Equal Protection clause of the 14th amendment, found that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful". (Technically that's about the jurisdiction of "any State" rather than the jurisdiction of "the United States" but if anything is a stretch too far, I think trying to avoid that by making some distinction between the two is).

 

[Optimus Prime]

My understanding is that Trump's citizenship EO only affects future births and people aren't retroactively getting their citizenship revoked

Is that right?

 

[RobF]

My understanding is that Trump's citizenship EO only affects future births and people aren't retroactively getting their citizenship revoked

Is that right?

Think so.

Text is here: https://www.whitehouse.gov/presiden...he-meaning-and-value-of-american-citizenship/

Says:

(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.

 

[brandon]

But now take the birthright citizenship provision of the 14th Amendment - that's concrete. It's much harder to engineer a result against the rules of constitutional interpretation when there's express language.

Here’s my wager. One of two things will happen during this administration’s term.

1 - the USSC will find a reason to find the 14th amendment unconstitutional, even though it’s the forking constitution, or

2 - the USSC will uphold the 14th amendment, but because they’ve ruled on presidential immunity, and Congress won’t impeach, Trump will begin deporting American citizens anyway.