Trump and Birthright citizenship

No, we need to enforce our existing amnesty laws that state anyone seeking amnesty must do so in the first country out of their own.

I think we need to stop ALL immigration until we deal with the 12-15 million that have come here illegally in the last few years.

Shut it down!! Immediate deportation! No hearings! No appeals!! Just shut it down!!

peace to you

 

Of course not.

Moreover, it just shows how ignorant Trump is about the Constitution. Of course, this should not be news, since he regularly made claims about the Constitution that were absolutely false to anyone who has taken a few minutes to read it. However, his audience will likely accept whatever he says without critical thought.

The article linked points this out the obvious fallacy of Trump using an Executive Order to make this change:

The concept of birthright citizenship is firmly established in U.S. law and can only be altered through a constitutional amendment. This means that any proposed changes to birthright citizenship would require a constitutional amendment to modify the criteria for who is eligible for this privilege and who is not.​

If Trump has any strategy here (other than to get votes from his anti-immigration base), he might think he can issue an Executive Order, knowing it will be challenged and go through the court system all the way to the Supreme Court. He may think "his Justices" will reinterpret the 14th Amendment according to his Executive Order, but that would fly in the face of the plain history of the meaning and purpose of the 14th Amendment's birthright provision. Slave didn't have constitutional rights until after emancipation, and even then their rights under the Constitution were not protected by many states. The 14th Amendment federalized citizenship and incorporated citizenship rights to all those who were born within the United States and places under the jurisdiction of the United States (for instance, at US embassies, US military installations overseas, and territories like Puerto Rico, etc.).

This is simply a campaign promise that he should know he cannot keep. If he doesn't know that, he has no business being President again.

 

First, the statement that “birthright citizenship” can only be altered through a constitutional amendment is simply false. I quick online search gave the following info, in my own words.

The 14th amendment gives congress the authority to implement the provisions of the amendment.

It was understood at the time, and should be today, to refer to the children of US citizens, born or naturalized.

There were always limitations, mainly due to the idea of foreign alliances (children born to foreign diplomats, etc,.,,)

Congress could pass a law, with their designated authority under the 14th amendment, to exclude citizenship for the children of illegal immigrants it is certainly not “ignorant” to think that to be a possibility.

It would certainly be challenged in court but I think it would be deemed constitutional.

BTW, of course DT is postering for the 2024 election. That doesn’t make him wrong and he certainly isn’t ignorant on this issue.

Peace to you

 

I suspect you are talking about refugees seeking asylum, right?

"Amnesty" is something completely different.

Can you quote or link to these law for us regarding the southern border? I have not been able to find any law like you describe that has been passed by Congress.

You may be thinking of the "safe third country" rule enacted by former President Trump that was remarkably ineffective for reducing the volume of refugees, as well as causing immense suffering for refugees who were sent back to their home countries to face abuse, torture, and death.

The Trump "safe third country" rule was rescinded because it didn't do what it was supposed to do, unless you believe that the Trump Administration actively wanted to have families tortured and killed.

Wouldn't it be nice if we could stop the persecution and killing of innocent people simply by calling a "time-out" to sort out internal concerns? However, reality is not so kind.

Send people to their deaths? Nope. I can't advocate for that.

As the child of someone who was a refugee to the United States as a result of World War II, I have some personal interest in this subject. My mother's family would have been raped, tortured, and executed if they had been sent back to their country of citizenship. And that's not speculation, it happened to earlier groups of displaced persons who were forced to go back.

As a Christian, I have an obligation to be an informed advocate for justice and mercy. You do too.

 

Please cite the source of this information so we know it is not just some opinion piece. The article Salty offered seemed entirely correct with everything I know about the 14th Amendment -- something I have studied carefully in college and graduate school.

Even if this information is accurate, Trump is talking about an Executive Order, not working with Congress to revise immigration law. So your claim is irrelevant.

Who claims this? Please cite the source.

Foreign diplomats as under the laws of their own country at the embassy (considered foreign soil) and they hold diplomatic immunity in many areas as they fulfill their role. That's a very different thing that someone who does not represent another government.

Sure. Of course, I never made such as assertion, nor did President Trump. AGAIN, President Trump promised to issue an Executive Order, not work with Congress. So it is certainly ignorant of Trump to believe he can do that.

If Congress passed a law, it might stand a chance to surviving a Supreme Court challenge. However, the Supreme Court doesn't like Congress overstepping its bounds to interpret the Constitution. That's what doomed the effectiveness of the Religious Freedom Restoration Act of 1993. The Supreme Court would not allow the RFRA to apply to the states.

You are correct to say that the fact that Donald Trump is making promises for the 2024 election doesn't make him wrong or ignorant on any issue. The fact remains that he IS wrong and/or ignorant of the issues surrounding birthright citizenship and how government works.

 

You are correct, I was speaking of asylum, not amnesty.

Unfortunately, my limited tech skills haven’t yet developed to the level of providing links. I suspect if you search existing US asylum laws, it would come up.

It would be nice if we could stop the killing, rape, child sex trafficking in the US, of US citizens before we allow millions of people into this country, many of which may be rapists, murderers, child sex traffickers.

Were you aware the current admin has lost track of more 70 thousand children (unaccompanied minors)?

But, we are getting off topic. Back to the OP.

Do you recognize the 14th amendment, first sentence, gives congress the authority to implement the provisions therein?

peace to you

 

" Section 1


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.

. . .

Section 5


The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

Section 1 is pretty straight forward.

Section 5 . . . shall have the power to enforce, by appropriate legislation, . . .
Does not sound to me to allow abridgement. But then remember Roe law issue by the court alone.

 

The 14th amendment was focused, primarily, to reinforce citizenship rights of freed slaves.

The phrase “subject to the jurisdiction thereof” has been used to limit several groups of people over the years including some Native American tribes and, as stated above, children born of foreign diplomats.

As far as I know, the issue of children born of illegal immigrants has not been adjudicated.

Therefore, I stand by the statement that Congress has the authority to pass a law concerning the children of illegal immigrants and the courts would then decide whether they over stepped their authority.

I believe they have the authority, but probably not the will.

peace to you

 

Not what it says, ". . . deny to any person within its jurisdiction the equal protection of the laws."

 

Yes, it does. First sentence.

peace to you

 

Yes, "are citizens . . ."
"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. . . ." Pretty clear to me.

 

And section 5 is clear to me. The congress has the power to enforce the provisions through legislation. The congress gets to decide what “subject to the jurisdiction” means. And they have throughout history limiting citizenship of children born of foreigners.

Congress also has specific constitutional authority to determine immigration policy. The two go together.

If the congress decides to write a law that denies citizenship to children born of illegal immigrants, they have that authority. It is specifically given in the amendment.

If it passed, it would be challenged and again, I believe the SCOTUS would uphold the authority to do so.

peace to you

 

All you have to do is cut and paste the link(s). It’s not as pretty as embedded links, but it works.

So you haven’t done it yourself… Sounds like you are relying on TV opinion pundits for your “facts.”

Unlike you, I have reviewed immigration law a number of times. I checked again before I posted my request to provide evidence of such a law, since I found no evidence that what you claim is true.

Look, I’m to an immigration attorney (although my sister-in-law practiced immigration law for a dozen years), so I could be wrong, but you have given me nothing but a metaphorical wave of your hand to send me off to try to justify your unsubstantiated claim. If you make a claim, you need to be able to cite the source.

By the same token, many of Trump supporters may be rapists, murders, child sex traffickers, and people who talk in movie theaters, but that would be just unwarranted defamation of a whole group of people. Quit attacking refugees! That’s evil.

The topic is whether or not we agree with Trump’s plan to use an Executive Order to reinterpret/eliminate Section 1 of the 14th Amendment.

No. Congress has the authority to ENFORCE the provisions of the 14th Amendment.

I’ll go ahead and reproduce the text of the 14th Amendment so you can intelligently discuss it:

—
Fourteenth Amendment

Section 1
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.

Section 2
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
—

I suspect you think the key to your claim is Section 5, but narrowing birthright citizenship would completely undermine the historical purposes for writing and passing the 14th Amendment. Congress wrote the 14th Amendment in the context of the Dred Scott decision and hostile actions again the rights of freed slaves from the States and the Supreme Court immediately after the Civil War. Moreover, the text of the Amendment is that Congress will “enforce” the provisions of the Amendment, not modify it. That requires another Constitutional Amendment.

You should know this. It’s basic constitutional knowledge. If you don’t know this, you know less than naturalized citizens about our history.

Now back to the original question that you have been trying to avoid:

Do you now recognize that Trump cannot change the 14th Amendment through an Executive Order?

 

Sure, but they did not specify former slaves. They laid down a principle of the Constitution that applies well beyond former slaves.

Native Americans were considered their own nations. I've already pointed out the fallacy of your diplomat example. And just because the Constitution may have been misapplied over the years doesn't make the bad decisions correct.

I don't know of a case DIRECTLY addressing this issue, but United States v. Wong Kim Ark, determined that a child born to non-citizens in the United States is a U.S. citizen. And Plyler v. Doe established that children of illegal aliens are protected under the Constitution.

The Court noted:

Pp. 457 U. S. 210-230.

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.​

Sorry, you are incorrect.

 

No, Congress does not have the authority to rule on the meaning of the Constitution. That role is reserved for the courts. Remember the whole "separation of powers" thing? Public schools were required to teach how government works...

Only in VERY SPECIFIC circumstances.

Yes, in the highly unlikely event Donald Trump becomes President again, he could work with Congress to revamp immigration policy. Then it would have to pass muster with the courts as they compare it to the Constitution. Of course, Trump did not promise to work with Congress. He nonsensically claimed he could issued an Executive Order to get it done.

Nope. Not at all.

Even this heavily corrupted SCOTUS would be unlikely to rule in favor of such unconstitutional nonsense.

 

Thanks for the info.

This is not about “equal protection” under the law, it is about citizenship.

Again, I am not arguing for or against birthright citizenship for children of illegal aliens.

I am saying the 14th amendment gives congress the authority to address the issue. It is far from settled law. It is far from settled that a constitutional amendment is necessary to do so.

And most certainly, DT is not “ignorant” for suggesting it could be done.

Whether it would survive a court challenge, I don’t know but suspect it would.

Again, thanks for the info.

BTW, you are my favorite person to debate. Your arguments are thoughtful and polite, and occasionally (but not too often) correct.

peace to you

 

You completely missed the point. Did you read the whole quote from Plyler v. Doe or just the first sentence? Let me emphasize the most relevant part of the quote.

The Court noted:

Pp. 457 U. S. 210-230.

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.​

In other words, the 14 Amendment applies to "illegal aliens."

You seemed to be with this statement that the 14th Amendment was written to apply only to children of US citizens, a position that is completely at odds with the history of the 14th Amendment:

"It was understood at the time, and should be today, to refer to the children of US citizens, born or naturalized."​

But okay. Let's drop that part of the discussion.

Sure, if Congress wants to write new immigration law, they are more than welcome to do it. However, they cannot undermine the established protections of the 14th Amendment. In order to change birthright citizenship, they need to repeal/replace the 14th Amendment.

It is settled law, but anyone can challenge it. Just because it can be challenged doesn't mean it is not settled.

Please provide evidence for this assertion.

Here's the statement you are referencing:

The fact remains that [Trump] IS wrong and/or ignorant of the issues surrounding birthright citizenship and how government works.​

Trump made the claim that he would issue an Executive Order to end birthright citizenship. That is definitely wrong and/or ignorant.

You jumped on the fact that I quoted Salty's article that correctly pointed out that changing birthright citizenship requires a constitutional amendment. Trump never talked about a constitutional amendment OR working with Congress to change birthright citizenship. So my statement still stands as absolutely true.

 

Obama, by executive order, declared a new protected class of illegal immigrant (dreamers) and the courts upheld his authority.

We live in interesting times.

I truly hope the congress addresses it. Once it makes it through the courts we can have a good discussion on it.

peace to you