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This EO is not even attempting to overrule the Constitution. The 14th Amendment includes the language “and subject to the jurisdiction thereof”. Is a child bo

This EO is not even attempting to overrule the Constitution. The 14th Amendment includes the language “and subject to the jurisdiction thereof”. Is a child born to a foreign national who is present in the US without legal authorization subject to the jurisdiction of the US? Historically, we’ve said “yes”. This EO instructs the executive branch to adopt the position of “no”. This is roughly equivalent to the EPA or BATFE changing the way it interprets an longstanding statute in a new way — which, by the way, they do very frequently.

deleted 1y ago
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biimugan 1y ago
This is decidedly not equivalent to those things, even roughly. Interpreting a statute (which by the way this Supreme Court has expressly limited, which is ironic given your comment) is quite different from interpreting an amendment to the Constitution. What you're describing is like saying a president can re-interpret the meaning of 'militia' in the 2nd amendment and start confiscating everyone's firearms because they're not members of a militia. Even despite rulings like Heller. This is exactly the argument that the dissent in this case makes.
- Ancapistani 1y ago
  > which is ironic given your comment With all due respect, what about my comment makes that ironic? I’m generally quite careful not to post if the only thing I have to offer is an opinion, and try to keep opinion out of it entirely. > What you're describing is like saying a president can re-interpret the meaning of 'militia' in the 2nd amendment and start confiscating everyone's firearms because they're not members of a militia. Even despite rulings like Heller. That’s basically what was done prior to Heller. Not for “everyone”, but functionally for several minority groups. Since Heller those efforts have primarily been at the state level (which is somewhat different, even with incorporation). > This is exactly the argument that the dissent in this case makes. Prior to today, I wasn’t super familiar with the case law here. It does look like SCOTUS has ruled in the past: US v. Wong Kim Ark (1898). It’s after 4am here, and Wong Kim Ark is a long ruling. I simply don’t have the attention remaining to read the whole thing right now, but I skimmed it and ran it through my a couple of LLMs. In skimming it, it appears to be applicable here both broadly and specifically. All the LLMs I’ve tried agree with that statement, including when phrased in the negative. In short: I was wrong, I believe you’re correct, and this EO should be overturned citing this precedent. —— As we’ve spoken of opinion, I’ll break with my normal course and state plainly: I believe birthright citizenship should be ended. However, given what I know now, the only acceptable way to do so would be a Constitutional amendment. I’m opposed to anything that oversteps governmental authority, regardless of whether or not it happens to serve my own political interests at the time.
  - lcnPylGDnU4H9OF 1y ago
    > what about my comment makes that ironic? It sounds like they’re referring to this: > This is roughly equivalent to the EPA or BATFE changing the way it interprets an longstanding statute in a new way — which, by the way, they do very frequently. The recent Supreme Court ruling that overturned Chevron deference limited the ability of such organizations to interpret the law. If the law does not make it clear then it (now) must be interpreted by a judge. I assume the irony they are referring to is in thinking this Supreme Court would have ruled in a seeming contrary way in this case. (It is a bit ironic but is also beside the point, which I guess explains why they put it in a parenthetical.) ---- > I believe birthright citizenship should be ended. I am curious to understand why you take this position. Would you mind explaining your perspective?
atmavatar 1y ago
Jurisdiction has to do with the location of the birth. If a child is born on US soil - whether that be US proper or US embassies in foreign countries (which are treated as US soil), they are automatically a citizen. Note that it also explicitly skips foreign nationals born inside foreign embassies, which are treated as sovereign land of the hosted country - e.g., a French Embassy is French land, so a child born to a French ambassador is not a US citizen. The argument that illegal aliens are not subject to US jurisdiction would also be followed by the absurdity that law enforcement could not arrest them for crimes and ICE could not deport them... due to lack of jurisdiction.
- Ancapistani 1y ago
  My understanding on this topic has progressed quite a bit. Please see this comment: https://news.ycombinator.com/item?id=44403323 https://news.ycombinator.com/item?id=44403323 > Note that it also explicitly skips foreign nationals born inside foreign embassies I’m unsure whether or not being on embassy grounds changes anything here in a general sense, but a child born to a foreign ambassador is not a US citizen regardless of birth location. The fact that the parents are foreign nationals working on behalf of a foreign nation means that they are not subject to the jurisdiction of the US. Of course, now I’m curious how things would shake out if, for instance, a foreign state appointed a US citizen as their ambassador to the US… > The argument that illegal aliens are not subject to US jurisdiction would also be followed by the absurdity that law enforcement could not arrest them for crimes and ICE could not deport them... due to lack of jurisdiction. This makes sense, but I want to know more about the specific legal process happening here. I believe we can agree on the following. Let me know if you disagree with any of these bullet points: - Ambassadors to the US are not subject to the jurisdiction of the US - Children of ambassadors to the US who are born in the US are not citizens of the US, barring extenuating circumstances such as at least one parent being a US citizen themselves. - The only available remedy in most cases for an ambassador violating US law is ejecting them from the country (deportation). In light of the above, if we assume in good faith that this administration believes that these people are not subject to the jurisdiction of the United States, then deportation is consistent with how similar cases are handled when the person in question is a foreign diplomat. To put it another way, if the US could not deport people without jurisdiction we would not be able to eject foreign diplomats. Given that we have done that in the past, _clearly_ the US does not require jurisdiction to for at least _some_ deportations.
boroboro4 1y ago
First of all this particular ruling has nothing to do with merits of the case. It's very unlikely they will rule in favor of EO in the end, which is while possible (with this court everything is possible) still is highly unlikely. > This is roughly equivalent to the EPA or BATFE changing the way it interprets an longstanding statute Here we're talking about constitution amendment. While the court does reinterpret constitution from time to time it's not something they do very frequently. Especially if you talk about more than a century precedent. Especially if the original meaning was quite straightforward: obviously a foreign national who is present in the US without legal authorization is subject to the jurisdiction of the US, I haven't seen illegals running around killing people and police choosing to ignore them because, hm, they aren't subject to US jurisdiction.

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biimugan 1y ago

This is decidedly not equivalent to those things, even roughly. Interpreting a statute (which by the way this Supreme Court has expressly limited, which is ironic given your comment) is quite different from interpreting an amendment to the Constitution. What you're describing is like saying a president can re-interpret the meaning of 'militia' in the 2nd amendment and start confiscating everyone's firearms because they're not members of a militia. Even despite rulings like Heller. This is exactly the argument that the dissent in this case makes.

Ancapistani 1y ago
> which is ironic given your comment With all due respect, what about my comment makes that ironic? I’m generally quite careful not to post if the only thing I have to offer is an opinion, and try to keep opinion out of it entirely. > What you're describing is like saying a president can re-interpret the meaning of 'militia' in the 2nd amendment and start confiscating everyone's firearms because they're not members of a militia. Even despite rulings like Heller. That’s basically what was done prior to Heller. Not for “everyone”, but functionally for several minority groups. Since Heller those efforts have primarily been at the state level (which is somewhat different, even with incorporation). > This is exactly the argument that the dissent in this case makes. Prior to today, I wasn’t super familiar with the case law here. It does look like SCOTUS has ruled in the past: US v. Wong Kim Ark (1898). It’s after 4am here, and Wong Kim Ark is a long ruling. I simply don’t have the attention remaining to read the whole thing right now, but I skimmed it and ran it through my a couple of LLMs. In skimming it, it appears to be applicable here both broadly and specifically. All the LLMs I’ve tried agree with that statement, including when phrased in the negative. In short: I was wrong, I believe you’re correct, and this EO should be overturned citing this precedent. —— As we’ve spoken of opinion, I’ll break with my normal course and state plainly: I believe birthright citizenship should be ended. However, given what I know now, the only acceptable way to do so would be a Constitutional amendment. I’m opposed to anything that oversteps governmental authority, regardless of whether or not it happens to serve my own political interests at the time.
- lcnPylGDnU4H9OF 1y ago
  > what about my comment makes that ironic? It sounds like they’re referring to this: > This is roughly equivalent to the EPA or BATFE changing the way it interprets an longstanding statute in a new way — which, by the way, they do very frequently. The recent Supreme Court ruling that overturned Chevron deference limited the ability of such organizations to interpret the law. If the law does not make it clear then it (now) must be interpreted by a judge. I assume the irony they are referring to is in thinking this Supreme Court would have ruled in a seeming contrary way in this case. (It is a bit ironic but is also beside the point, which I guess explains why they put it in a parenthetical.) ---- > I believe birthright citizenship should be ended. I am curious to understand why you take this position. Would you mind explaining your perspective?

atmavatar 1y ago

Jurisdiction has to do with the location of the birth. If a child is born on US soil - whether that be US proper or US embassies in foreign countries (which are treated as US soil), they are automatically a citizen. Note that it also explicitly skips foreign nationals born inside foreign embassies, which are treated as sovereign land of the hosted country - e.g., a French Embassy is French land, so a child born to a French ambassador is not a US citizen. The argument that illegal aliens are not subject to US jurisdiction would also be followed by the absurdity that law enforcement could not arrest them for crimes and ICE could not deport them... due to lack of jurisdiction.

Ancapistani 1y ago
My understanding on this topic has progressed quite a bit. Please see this comment: https://news.ycombinator.com/item?id=44403323 https://news.ycombinator.com/item?id=44403323 > Note that it also explicitly skips foreign nationals born inside foreign embassies I’m unsure whether or not being on embassy grounds changes anything here in a general sense, but a child born to a foreign ambassador is not a US citizen regardless of birth location. The fact that the parents are foreign nationals working on behalf of a foreign nation means that they are not subject to the jurisdiction of the US. Of course, now I’m curious how things would shake out if, for instance, a foreign state appointed a US citizen as their ambassador to the US… > The argument that illegal aliens are not subject to US jurisdiction would also be followed by the absurdity that law enforcement could not arrest them for crimes and ICE could not deport them... due to lack of jurisdiction. This makes sense, but I want to know more about the specific legal process happening here. I believe we can agree on the following. Let me know if you disagree with any of these bullet points: - Ambassadors to the US are not subject to the jurisdiction of the US - Children of ambassadors to the US who are born in the US are not citizens of the US, barring extenuating circumstances such as at least one parent being a US citizen themselves. - The only available remedy in most cases for an ambassador violating US law is ejecting them from the country (deportation). In light of the above, if we assume in good faith that this administration believes that these people are not subject to the jurisdiction of the United States, then deportation is consistent with how similar cases are handled when the person in question is a foreign diplomat. To put it another way, if the US could not deport people without jurisdiction we would not be able to eject foreign diplomats. Given that we have done that in the past, _clearly_ the US does not require jurisdiction to for at least _some_ deportations.

boroboro4 1y ago

First of all this particular ruling has nothing to do with merits of the case. It's very unlikely they will rule in favor of EO in the end, which is while possible (with this court everything is possible) still is highly unlikely. > This is roughly equivalent to the EPA or BATFE changing the way it interprets an longstanding statute Here we're talking about constitution amendment. While the court does reinterpret constitution from time to time it's not something they do very frequently. Especially if you talk about more than a century precedent. Especially if the original meaning was quite straightforward: obviously a foreign national who is present in the US without legal authorization is subject to the jurisdiction of the US, I haven't seen illegals running around killing people and police choosing to ignore them because, hm, they aren't subject to US jurisdiction.