Trump tries to end birthright citizenship with an executive order (1 Viewer)

[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/

 

[Sendai]

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.

I doubt it will go any higher than a circuit court of appeals.

 

[MT15]

I doubt it will go any higher than a circuit court of appeals.

Of course it will. Trump will demand it - they will appeal it up to SCOTUS and they will hear it out of deference. And because a majority of them want to end birthright citizenship.

 

[superchuck500]

I doubt it will go any higher than a circuit court of appeals.

I think it will, not necessarily on the merits (perhaps on process) but a president has tried to make a contrary/new reading of a constitutional amendment become the executive branch law (the body that issues various forms of the rights of citizenship). Leaving it to the circuits invites variation and given the interest in the topic and the length of time from the last major cases, seems appropriate for the Court to take it.

 

[Sendai]

I think it will, not necessarily on the merits (perhaps on process) but a president has tried to make a contrary/new reading of a constitutional amendment become the executive branch law (the body that issues various forms of the rights of citizenship). Leaving it to the circuits invites variation and given the interest in the topic and the length of time from the last major cases, seems appropriate for the Court to take it.

I doubt there would be any variation. Not likely to find a court that would agree with the EO.

 

[superchuck500]

I doubt there would be any variation. Not likely to find a court that would agree with the EO.

I can think of one.

 

[superchuck500]

Here's pleadings from the case in the Western District of Washington - this appears to be the case that is progressing. Trump DOJ has responded.

Initial complaint:

https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.1.0.pdf

Plaintiff's emergency injunctive motion

https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.10.0_1.pdf

Trump DOJ response:

https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.36.0.pdf

 

[superchuck500]

 

[superchuck500]

Well now

 

[MT15]

And how many millions of taxpayer dollars will be wasted by the Trump DOJ trying to plead their case? Conservatives everywhere should be outraged and condemning this nonsense.

Of course they will say nothing.

 

[superchuck500]

And how many millions of taxpayer dollars will be wasted by the Trump DOJ trying to plead their case? Conservatives everywhere should be outraged and condemning this nonsense.

Of course they will say nothing.

How long before Trump blasts the Reagan-appointed senior judge as a radical leftist?

 

[MT15]

How long before Trump blasts the Reagan-appointed senior judge as a radical leftist?

I’m surprised he hasn’t already. Maybe it’ll have to wait until Fox or NewsMax reports it, though, because he’s sure as shirt not reading any court documents.

 

[superchuck500]

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).

Here’s a good read for you

Originalism and Birthright Citizenship

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cit

papers.ssrn.com

 

[superchuck500]

 

[superchuck500]

 

[superchuck500]

It’s kind of crazy to me that Judge Coughenour would ask “where were the lawyers?” - when it’s very obvious that Trump has engineered his team to exclude any lawyer that would counsel against any of his instincts.

Has the judge not been paying attention?

 

[Lapaz]

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).

It occurs to me that if undocumented migrants are not subject to US jurisdiction, they would not be able to be charged with any crimes. They could kill anyone without facing US Justice. Imagine if a migrant from an unfriendly country committed atrocities, and that nation decided not to prosecute. It is ridiculous to think they wouldn’t be subject to our laws. Of course once caught, they would be deported, but under Trump’s theory, no other crime. It would be anarchy.

 

[DJ1BigTymer]

It occurs to me that if undocumented migrants are not subject to US jurisdiction, they would not be able to be charged with any crimes. They could kill anyone without facing US Justice. Imagine if a migrant from an unfriendly country committed atrocities, and that nation decided not to prosecute. It is ridiculous to think they wouldn’t be subject to our laws. Of course once caught, they would be deported, but under Trump’s theory, no other crime. It would be anarchy.

From the "mass deportation" thread:

Is it safe to speculate that the reasoning behind their decision is because of the belief these individuals shouldn't be afforded these services due to their immigration status?

To steal a favorite phrase from the radical right, "that's a slippery slope". What other services, or protections will they deny?

 

[Lapaz]

Of course it will. Trump will demand it - they will appeal it up to SCOTUS and they will hear it out of deference. And because a majority of them want to end birthright citizenship.

Alito, Thomas and Gorsuch may ignore the constitution, but the other 6 won’t. I think even Alito and Gorsuch will rule lawfully. Thomas is the one most likely to rule illogically.