I didn’t venture an opinion on whether President Trump’s executive order banning birthright citizenship would fly with the Supreme Court (I did post about Justice Jackson making a fool of herself during oral argument), but I would have been surprise if today’s decision had turned out differently than it did.
The Supreme Court ruled today that President Donald Trump’s executive order was unconstitutional. The ruling was announced just as I was preparing commentary on earlier decisions this week: that post will arrive later today.
Chief Justice Roberts wrote the majority opinion in the 6-3 ruling. “If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design,” Roberts wrote. Justice Brett Kavanaugh concurred in the result but dissented on the reasoning. Such concurring opinions are for professors and geeks, to be cited in law review articles and wild-hair judicial opinion dicta.
Justice Samuel Alito made some interesting points in his dissent about how birthright citizenship has very different, and potentially perilous implications today that never occurred to the Founders, writing,
Ethics Alarms 
If the Democrats don’t take control of the House and Senate in November there needs to be a proposed Amendment to the Constitution that eliminates birthright citizenship in the USA.
After the illegal immigration fiasco perpetrated upon the USA by President Biden’s administration, I think the time is right to permanently fix this.
There is not a snowball’s chance in hell that this proposed amendment will pass. The founders of the USA made it deliberately difficult to amend the constitution as passing requires a) two-thirds supermajority votes in favor in both the House and the Senate b) three-quarters of state legislatures to approve the amendment via an up-or-down vote.
This was properly decided. We do not eliminate Constitutional rights because some people abuse them.
As to an amendment to the Constitution, what does the commentariat think about restricting birthright citizenship to someone who has at least one parent who is already a U.S. citizen? That would eliminate most of the birthright tourism right there. The resulting child could stay in the U.S. with the citizen parent, thus avoiding the ugly spectacle of separating children from their parents. Sure, there are people who would find loopholes, but that’s always the case with every rule.
The more I read what Justice Ketanji Brown Jackson writes, the more I come to believe that she’s a deeply biased closet anti-white racist, a true believer in Direct Democracy – as in mob rule, and a progressive activist Justice; her deeply rooted biases has made her stupid and unqualified to be a Supreme Court Justice. Ketanji Brown Jackson should not have been confirmed for a Supreme Court Justice, her presence undermines the court.
If the Democrats cease political power in DC and actually accomplish their threats of stacking the court with more progressive activists, like Justice Jackson, I think there is a reasonable possibility that the tentacles of that kind of stacking would permeate throughout the judiciary across the USA, enabling activist judges to actively undermine the Constitution of the United States rendering it nearly unenforceable. I sincerely hope this doesn’t happen.
The more I read what Justice Ketanji Brown Jackson writes, the more I come to believe that she’s a deeply biased closet anti-white racist, a true believer in Direct Democracy – as in mob rule, and a progressive activist Justice; her deeply rooted biases has made her stupid and unqualified to be a Supreme Court Justice. Ketanji Brown Jackson should not have been confirmed for a Supreme Court Justice, her presence undermines the court.
Jonathan Bowden has presented the idea that race is essential to human identity. That it has been, is now, and will forever be a central factor of identity. Except of course among denatured Whites of Postwar. Because “race superiority” was so central to National Socialist ideology, and because this was utterly vilified, any sort of identity based in national, ethic and race factors was made into an evil identification. It is, of course, exclusively a ‘white thing’. It’s amazing and quite bizarre when you examine it.
It just so happens that those in the disempowered minority — the people of color from the larger parts of the world — are not obligated to adopt an ideology of self-erasure. Quite the opposite in fact. Their “identifications” are tied to their historical struggles. But you, you see, are slated for erasure. It is the destiny that has been decided for you. It has been made manifest in a social engineering process that began in about 1965.
That’s my take on her as well. When you work in higher ed long enough, sometimes you can just tell from the type of person. I can sense white progressive liberals sometimes just by watching them and seeing how they speak. It’s pretty weird, but usually I’m right about 80% of the time.
She is pretty much exactly what a DEI hire looks like. Her rhetoric matches the 20 somethings progressives I work with.
Yeah, but. If a provision of the Constitution is outdated and doesn’t work properly, the required process is to amend the Constitution.
That is exactly right: the Constitution would have to be amended. And at this point that will never, ever happen. The new direction of the country is determined by the new demographic (“demography is destiny” someone said). The demography of the country is now completely different. The nature of the civic body was altered since about 1965. And there is no stopping it now.
I can’t see the original intent ever being “anchor babies.” To suggest hundreds of thousands of people can illegally cross the border and give birth here, and that birth gives automatic citizenship seems strained beyond all measure.
Of course not. But the Founders did not foresee the United States becoming a world-dominating power with untold numbers of people coming from cultures hostile to us. If the Democrats truly believe that the Constitution is a Living Document that can be adjusted to fit the times, why would they not want to make sure that foreign citizens cannot vote in our elections?
Many years, I participated in a “Star Wars” message board that had a number of foreign citizens. One particular German woman was vocal about how the United States was hated the world over. She maintained that the citizens of Europe should be allowed a 1/4 vote in our national elections since they are affected by what is decided here. The suggestion, 25 years ago, seemed ridiculous to all.
But here we are in a world where people come to the United States, stay long enough to give birth and either
A) Refuse to take their child and leave because they want the child to have the benefit of U.S. citizenship and, after all, deporting the parent without the child is cruel.
B) Give birth to a U.S. citizen, leave the country and sent him back 21 years later with a passport, social security card and the right to vote and absolutely no allegiance to our nation or its values.
These loopholes have to be closed.
The Left loves to deny that these things happen but, if a far-right regime in Europe sent its citizens over here to give birth to U.S. citizens under the same pretext of benefiting from our largesse and being able to influence our elections, what would their response be? The Democrats have no standards unless they are double standards, after all.
You’re right about the social dynamics, but I think there’s a good historical argument.
Birthright citizenship was meant to protect the children of slaves, and that is an originalist argument.
But again, that’s because there was no possible conception that such a thing was possible. The US had no restrictions on immigration. The Constitution says how things should be done. It couldn’t possibly list all the abuses, many unimaginable, that shouldn’t be done. Fixing those require laws, Passing those laws require vote in Congress and Presidential signatures. Limiting what can be done under the Constitution—like, say, buying alcoholic beverages—or adding to what can be done—like giving women the vote–require amendments. That IS originalist.
Exactly this.
If a child is born on us soil, that doesn’t mean they need to be raised here.
like Bruce Lee, they can return home with their parents, once they reach adulthood they can then decide if they would make a home here .
The America that was reborn from the rubble of the Civil War simply does not countenance that inequitable result, Thankfully, a majority of the Court remembered this today, and has dutifully preserved the most basic animating principle of our Nation’s founding—that all human beings are created equal— once more.”
A bastard child could also be said to have been “born” from the rubble of the conquered South. A strange child really. Very “northern”, very self-righteous, and in that sense blinded by mistaken (or badly interpreted) idealisms. All of it became infused into the newer Civic Religion. And that civic religion became a central pillar in a National education program. You had to see things that way or you weren’t really American …
The logical result? The Northern zealot, who with religious conviction become the tearer-down of Old Monuments, the righteous rioter, the advocate for Democratic Socialism — and the final chapter really in a phase of transformation.
Since this post is labelled Supreme Court Ethics 1, I assume there are more coming, especially in light of:
The Supreme Court rejecting Trump’s appeal of the damages he has to pay to E. Jean Carroll
The Supreme Court declaring constitutional mail-in ballots that are postmarked on election day and received up to 5 days after election day
The Supreme Court denying the President the ability to fire Fed officials, while allowing the President to fire, without cause, those under the Executive branch
The Supreme Court upholding making women’s sports women’s only
The Supreme Court striking down the Federal Election Campaign Act as violating the First Amendment
What is making me some irritating is the whining I’m seeing from Conservatives on the Supreme Court’s decisions on birth rights and mail-in ballots. I don’t think the Supreme Court made unjustifiable or bad decisions, given the reasoning they gave, but Conservatives are claiming otherwise, even saying that decisions amounted to betrayal. Suddenly Amy Coney Barrett is not the darling of the Right…
Still, I think these cases again show that the Supreme Court is not forever locked in the 6-3 ideological split, and that it does not just hand Trump whatever he asks for. The frothing-at-the-mouth attitude of the Left needs to calm down.
The Supreme Court threw out a bank robbery conviction due to a geofence warrant. (Tracking everyone’s cell phone in an area.) I tried reading and understanding the opinion of the court, and I struggled to understand.
The may make life hard for Flock. It certainly makes life uncomfortable for those tracking movements of people, including tech companies and car companies.
There is also a grant this morning to take two different AR-15 gun ban cases for next term. They held over California’s magazene ban, making it the longest running supreme court case and the most numbers of conferences any case has ever had.
through -> threw
Geez…
Caught it! Fixed it! See? I’m looking out for you!
Thanks Jack
I remember reading about that case, but I didn’t ever hear how it turned out. It’s a complicated case, but on balance it appears they came down on the more due process side of things.
I can live with that, I think. We have tons of surveillance already.
It annoys me to hear someone like Megyn Kelly complaining that Barrett shouldn’t have ruled this way because ‘she’s supposed to be on our side’. Well, no she’s not, she’s supposed to be on the side of the Constitution and I think she has been.
I can see the arguments against birthright citizenship, but I have always thought that this would be one of the cases Trump was going to lose. It’s not that convoluted (and contorted) arguments are a bar to being constitutional, but I just thought the plain reading of the 14th amendment was going to uphold the status quo.
You will often hear commentators gripe that the three liberal justices will always come down on ‘their’ side of an issue. But given that, it is hypocritical to then gripe that Barrett and Roberts didn’t vote for ‘our’ side of the issue.
Our side is the constitution. Period. But of course, the devil is in how you read the document.
I’d bet Alito has read or heard about the issue of wealthy foreigners (mainly Chinese), without even having traveled to the country themselves, using US surrogate mothers to produce multiple “citizens” that can be used against our interests in the future.
It’s an industry seemingly base primarily in (surprise!) California.
https://firstthings.com/the-wealthy-chinese-buying-babies-and-american-citizenship/
That’s been addressed already. Barack Obama ordered the extra-judicial killing of Anwar al-Awaki with the express knowledge that it would also kill Abdulrahman al-Awlaki. Anwar was a natural born citizen born to parents temporarily in the United state, the younger was the child of US citizens, also born in the United States.
During the arguments of Trump v. United States (23-939… we have to be specific since there are so many now), the extra-judicial killing of Anwar al-Awaki was specifically mentioned by Gorsuch in oral arguments and Barrett in a concurring opinion. It was stated by both that if they didn’t find for Trump, Obama could be found guilty of murder.
With that precedent, the option is to commit state sanctioned murder against such an individual when they’re outside the US.
It is unfortunate about the opacity of the supreme court’s internal activities. There’s much we’d love to see going on behind the scenes. I get that during a case, they need secrecy. But the aftermath the secrecy isn’t.
Down that list a ways of things I’d like to know, is an answer inspired by this:
How is it for the other justices to work with her? The other staff? I would imagine by now it has grown quite tedious. In addition, does she surround herself with other like minded DEI morons? Or did they get some good minds that she runs roughshod over with her low intelligence opinions?
OK so the child is an American citizen does that confer rights on the parents? No. If one or two US parents are transferred to work outside to the US and the family must relocate for that job does the child with birthright citizenship have veto power over a parental decision? No.
We can pass laws to ban entry by pregnant people for tourism purposes and make pregnancy a cause for immediate deportation? Yes. A gestating child apparently has limited rights and cannot be considered a citizen. Even if a child born to an illegal slips through and becomes a citizen the child can return to the US at the age of majority. That will still allow the problem of chain migration but postpones that event. We must eliminate the condition of giving refugees and illegal aliens time to become entrenched in society. We may not be able to deny citizenship we should not devalue it by facilitating it for all comers.
So, what kind of loopholes can we close?
Can we make it illegal for a U.S. citizen to be paid by a foreign citizen to carry an unborn child that will be born in the U.S. but removed from the country to be raised elsewhere?
Can we prevent all pregnant women from entering the country?
Can we take a U.S. born child away from the mother and put the child in an institution unless the mother agrees to waive U.S. citizenship for the child and self-deport?
Can we revoke work and student visas for foreign women who become pregnant here?
What’s on the table?
Technically, selling people is already illegal so the idea of gestation for a foreigner who will take the child in a financial transaction seems illegal in itself. We could make surrogacy legal only when all parties are legal residents.
Yes, we can prevent pregnant women from entering. First, the entry documents could require an statement attesting to not being pregnant with a proviso to submit to testing if challenged Tourist visas are limited to 6 months so anyone appearing pregnant could be required to have a pregnancy test prior to entry and any that slip through could be grounds for immediate deportation. We could also pass a law that says physical presence alone does not mean the person has entered the country. We have something like that at airports where travelers simply are connecting to other carriers and not leaving to controlled area are not legally present in the US.
There is no reason to take away a child from the mother irrespective of the mother’s legal status. Typically a child born to a US citizen is a citizen no matter where the child is born. If the mother is a foreign national without legally allowed to remain the child will remain with the parent and be deported with her. The child can return to the US when the child is of of age or emancipated by their choice.
The last point could be dealt with on a case by case basis as we do with the marriage between a foreign person and US citizen. Any reevaluation of the temporary visa must factor in whether the mother has the ability to financially care for the child during the term of the visa. After that the child is a legal appendage to the mother until the child reaches adulthood when the child can exercise his or her citizenship rights.
Some types of temporary visa already include a pregnancy ban. They’re required to self deport before the 3rd trimester. Failing to leave results in a 10 year ban on entry and a permanent bar to citizenship. Many women chose the future of their kid over their own interest in being here.
And why not? They can argue that deporting their child is illegal; deporting the parent without the child is cruel and separates parents from children. Their ability to stay in the U.S. will be considered a fait accompli.
“We can pass laws to ban entry by pregnant people for tourism purposes and make pregnancy a cause for immediate deportation?“
People may be here legitimately on a work visa, without a route to a green card. E.g. software consultants helping with the implementation of a software package developed in Europe for a company in the USA, as there is not yet expertise in the USA to do the consulting. Or a multinational where executives from Europe have to help with setting up or training a new site in the USA. These professionals may stay here for a year, and bring their spouses along.
These professionals are often not happy with the automatic USA citizenship for the children born in the USA, as when they go home the USA citizenship creates tax complications due to global taxation. Banks in Europe may refuse to open bank accounts for US citizens due to cumbersome USA tax reporting requirements.
Can a H1B or foreign executive parent renounce birthright citizenship for a child born here or should citizenship with full rights and privileges be granted only on reaching the age of majority.
It seems to me if we can subject juveniles to curfews, restrict their ability to engage in contracts or even allow them to give permission to a school employee to provide an aspirin then it appears that juveniles are not true citizens until they get to a certain age and up to that point they simply are afforded automatic granting of citizenship.
“Can a H1B or foreign executive parent renounce birthright citizenship for a child born here or should citizenship with full rights and privileges be granted only on reaching the age of majority.“
My understanding is that H1B and L1B workers who gave birth to child in the USA have to take the initiative to renounce USA citizenship of their child. USA citizenship is sticky; I presume this have to do with global taxation. If you retain USA citizenship you have to pay taxes to the USA over income earned in the country of residence e.g. the Netherlands, even if you are a Dutch citizen and have been living there since you were a baby.
Before reading the dissents, I was pretty certain a straightforward reading of the 14th Amendment should overturn the executive order. After reading the dissents I at least understand their argument. It boils down to two issues. First is that in 1896 the Wong Kim Ark case found four exclusions to the clear language of ‘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.’. Given those exclusions, children of foreign sovereigns or their ministers, children of enemy states, etc. So there is clear prior understanding that the language of the 14th amanedment is not as borad as written.
The main dissents argue for a contemporary understanding that citizenship should be based on domicile, and ‘subject to jurisdiction’ is not as clear as just being present in a location, hence the 4 exclusions found in the Wong Kim Ark case. I don’t think it’s a convincing argument; they could (should) have written the 14th amendment to say, ‘, and domiciled within, are…’, but it does support contemporary discussions.
Interestingly, Thomas’ main arguments sound more like a living-constitution framework than an originalist reading. Long-term, I don’t think it’s tenable to consider both frameworks valid, as jurists could then shamelessly support whatever position they want, untethered from a coherent, consistent view.
“If a provision of the Constitution is outdated and doesn’t work properly, the required process is to amend the Constitution.”
I think that misses the point that was being made. I looked at Kavanaugh’s opinion and he alludes to Alito’s argument. His point was that not every change requires an amendment. You know those stupid people who say that the Second Amendment only applies to muzzel-loaders? They are wrong because the Court can apply the principles of the right to situations that did not exist at the time. His other example was extending 4th amendment protections to automobiles. And, considering that the Supreme Court had, essentially created 4 exceptions to the Amendment, what’s a couple more?
All along, the tricky phrase has been “subject to the jurisdiction thereof.” Thomas made a good point that that phrase was often used with “not subject to any foreign jurisdiction.” (Don’t make me do a Venn Diagram of those two phrases-that’s Kamala’s forte.) Former slaves were unique because they were not subject to a foreign jurisdiction and Dred Scott excluded them from citizenship in the United States. From that point of view, citizens of foreign countries who have children here (and who would be citizens of that foreign country), would not be citizens
I am not sure if I agree with the majority (I reviewed the syllabus and the reasoning made sense), but it is certainly a defensible decision, but so is the opposing position.
And, I got through a few pages of Jackson’s concurrence before moving on.
-Jut
Is it possible that KBJ is so unqualified for the position she has chosen to hold(unintelligent- can her SJWDEI rantings be distinguished from AI slop?) that insulting her on a regular basis and maybe even a mocking meme movement being spurred would be ethical?
Something that’s been bugging me: Trump wasn’t trying to end birthright citizenship in general. He was trying to extend the exception for diplomats, etc to ALL foreign citizens. It’s constantly stated as flat ending it, and I don’t think it’s accurate.
I have a workaround…. pass law defining all foreign nationals (tourists and unlawfully present foreign citizens), who aren’t already recognized dignitaries as exempt from state or federal jurisdiction for minor crimes. Say, misdemeanors subject to $100 or 1 day in jail or less. They they are no longer subject to our jurisdiction since it’s been explicitly waved.
I’d also support a law revoking citizenship of all dual citizens at age 18 if they haven’t spent any time living on US soil.