US Supreme Court agrees to hear case challenging birthright citizenship

https://www.bbc.com/news/articles/c208j0wrzrvo

by 1659447091 • 8 months ago

28 63 8 months ago

"For nearly 160 years, the 14th Amendment of the US Constitution has established the principle that anyone born in the country is a US citizen, with exceptions for children born to diplomats and foreign military forces."

I was actually unaware of this. That does seem to be a wedge to maybe support the issue. I'm not arguing one way or another for or against, just an interesting opening I had not seen before.

commandlinefan3• 8 months ago

It's tricky - the 14th amendment was passed following reconstruction as a way of ensuring that freed slaves couldn't be denied citizenship. Much later, the Wong Kim Ark case argued that it should cover the children of immigrants, and the supreme court agreed. Quite a while after that, the Wong Kim Ark decision was interpreted to include children of non-citizens as well, and _that's_ what's never been tested in court until now.

wonderwonder3• 8 months ago

Haven't heard of this either, obviously not a topic I am up to date on. I'll look into it, appreciate the pointer.

josefritzishere3• 8 months ago

It should not be tricky. The role of the supreme court is to enforce and interpret the constitution and federal law. What the constitution says in this case is unambiguous. It would very reductive to re-inturpret the 14th amendment after 150 years to mean something other than what it says.

Ancapistani13• 8 months ago

the Wong Kim Ark decision was interpreted to include children of non-citizens as well

Non-citizens, yes, but foreign subjects who were compliant with US law at the time.

I believe the scope of this decision will be limited to children born on US soil to non-citizens who entered the country illegally.

oldsklgdfth2• 8 months ago

The precursor to this case is Trump v. CASA[0], which arose from injunctions blocking the executive order banning birthright citizenship. The case made it to the supreme court on the emergency docket. The court did not address the merits of the case (i.e. is the ban on birthright citizenship constitutional), rather they heard an argument against universal injunctions and the authority of a judge to block executive order. The court judged against universal injunctions. Basically the EO stands.

Subsequently, the plaintiffs forced a certified class and sought a class-wide injunction. This case is called Trump v. Barbara. SCOTUS has agreed to hear the case on the question of the constitutionality of a ban on birthright citizenship.

[0] https://www.scotusblog.com/cases/case-files/trump-v-casa-inc...

EDIT: The Trump v. CASA opinion handed a win to the executive to issues orders without universal injunctions blocking the order immediately. My hot take is that this was part of the original strategy. Not sure how the court will land on the current question at hand.

josefritzishere3• 8 months ago

This is madness.

Ancapistani13• 8 months ago

It's really not.

First, _jus soli_ is relatively rare in the world at large.

Second, the Supreme Court has never ruled on birthright citizenship; the meaning of the phrase "subject to the jurisdiction thereof" has not been tested.

Regardless of your political views, this is an extremely important area of US law, and for it to be undefined isn't fair to anyone.

D13Fd2• 8 months ago

Even if "subject to the jurisdiction thereof" has never made it to the Supreme Court, it's not an ambiguous phrase subject to multiple interpretations. The idea that some class of immigrants are outside the jurisdiction of the US even when they are physically in the country is not supportable.

jswelker5• 8 months ago

I think there are plenty of things that haven't been tested because they are so obvious they don't need to be tested.

jmclnx2• 8 months ago

We know the current supreme court will end this.

But the big question is how will this be enforced ?

What happens if the parents became citizens after their children were born. Will the children be deemed non-US ?

Also I know many people who's children were born in the US but parents were from Ireland and not US citizens. Either on a tourist visa or work visa or undocumented. Some kids have been here for over 50 years.

Will this only be enforced if the child has the "wrong" skin color ? That is what I expect.

Ancapistani13• 8 months ago

It's extremely uncommon for the court to issue an opinion with such large repercussions.

Even if birthright citizenship is overturned (which I find very unlikely), I would expect it to be narrowly defined so as to apply only to children born of parents not present legally in the country - and likely with a specific carveout for those who overstay visas and such, as those people are clearly subject to US jurisdiction by virtue of the application process.

The absolute largest change I would expect would be to end birthright citizenship for children whose parents illegally entered into the US and have never had a visa of entry permit of any type whatsoever.

oldsklgdfth2• 8 months ago

The absolute largest change I would expect would be to end birthright citizenship for children whose parents illegally entered into the US and have never had a visa of entry permit of any type whatsoever.

That's the vibe I get.

However, I don't see a definition of jurisdiction in the phrase "subject to the jurisdiction thereof" that would make this workable. How do you see this being resolved?

commandlinefan3• 8 months ago

those people are clearly subject to US jurisdiction by virtue of the application process.

But the wording doesn't apply to the parents, it applies to the baby: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof", not "All persons born or naturalized in the United States, and whose parents are subject to the jurisdiction thereof".

nullocator2• 8 months ago

It's extremely uncommon for the court to issue an opinion with such large repercussions.

Like Dobbs (Abortion), Bruen (Guns), Students for Fair Admissions (Affirmative Action), Loper Bright, Destruction of the voting rights act, Trump is king, etc

This supreme court issues at least one opinion with massive repercussions each term, every term. I simply don't know how you are under the impression that they care about repercussions in the slightest. They don't much care for rationale explanation or precedent either.

cratermoon4• 8 months ago

Hannah Arendt's 1951 book The Origins of Totalitarianism in the chapter titled "The Decline of the Nation-State and the End of the Rights of Man" discusses how European countries did this after World War I and the results of those efforts.

D13Fd2• 8 months ago

We know the current supreme court will end this.

Do we? The language of the 14th Amendment is extraordinarily clear:

"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."

I agree it's possible that the Court will just throw it out. But at that point, what meaning does the constitution have? How are any of our rights protected if the Court can just void the plain language of an amendment?

Crazy stuff.

jfengel2• 8 months ago

The meaning of "subject to the jurisdiction thereof" is flexible enough for them to decide whatever they want it to mean.

cratermoon4• 8 months ago

The court will probably look at the meaning of "subject to the jurisdiction thereof".

jswelker5• 8 months ago

I don't think they have the balls to end it. I think they just decide that adjudication on the case takes 4+ years, they sidestep making any real decision, and they hope and pray the whole thing goes away with the next administration. In the mean time, the Trump admin continues to do what they want, with the fig leaf that they promise they will listen to the court.

palmotea• 8 months ago

What happens if the parents became citizens after their children were born. Will the children be deemed non-US ?

There are already laws about that. IIRC, all minor children become citizens when a parent is naturalized.

jmclnx2• 8 months ago

That seems fine, but what about Adult Children ? And maybe their children.

Their parents had them and some became citizens once they became adults (kids 18+ years old).

If ended it will be a big mess I think. But if they do end it, maybe this rule will be applied starting 'today', not retroactively.

IAmBroom3• 8 months ago

Those laws might be rendered incompatible with the SCOTUS decision.

cratermoon4• 8 months ago

The court will do as European countries did after the first world war: people of certain backgrounds and having some kind of stateless or refugee status will be deprived of any birthright. Left unchallenged, this will eventually lead to mass de-naturalization and deportation or, for those with no country or whose country refuses them, indefinite detention in some kind of "displaced persons" camp.

cratermoon4• 8 months ago

After the first world war Austria-Hungary and Serbia ceased to exist and, along with parts of Russia, became parts of the new countries of Austria, Hungary, Poland, and Czechoslovakia along with an enlarged Romania and a number of other smaller countries.

The result of this is that many people became stateless or de facto citizens of a country where they were in the minority. The Minority Treaties attempted to ensure these citizens maintained rights in countries of the League of Nations, but this was ill-enforced at best.

During the years leading up to World War II, numerous of these new countries, plus France and Germany, began to de-naturalize people of minority (for that country) descent including Germans, Poles, Balkans, Russian, Spaniards and of course Jews. They began to revoke citizenship of both naturalized and native-born people, and attempted to deport them to various places even though many had never lived there and those countries did not want them.

jfengel2• 8 months ago

As far as I can tell, being born here is the only reason that I'm considered a citizen. My parents were also considered citizens for the same reason. But if we go back a few generations, I don't think the paperwork exists to prove that their great-grandparents were citizens. There might be a copy in some Ellis Island archive, but I'd be hard pressed to locate it.

So... lacking that documentation, does the recursion unwind? Being descended of not-provably-naturalized-citizens, am I at risk of deportation?

Ancapistani13• 8 months ago

I have two thoughts about this.

First - there's no point in worrying about something before it's clear what will happen. Personally, I find it extremely unlikely that any decision will be so broadly defined as to be applicable to more than a handful of people.

Second - I propose that it doesn't matter. I lean toward the Trump administration's positions on probably 2/3 of the issues commonly discussed today, and even from that position I would be incredibly outraged if mass denaturalization were to come to pass. The country would no longer be the America I love at that point, and I would feel very little if any affinity for it.

If what you fear comes to pass, I wouldn't see it as something happening to you - I would see it as a clear signal to emigrate as soon as possible, and at pretty much all costs.

muwtyhg3• 8 months ago

First - there's no point in worrying about something before it's clear what will happen

You don't think it's important to prepare for things that have a non-zero likelihood of occurring? This case has already worked its way to the Supreme Court, it's obvious something is happening with it.

Second - I propose that it doesn't matter. I lean toward the Trump administration's positions on probably 2/3 of the issues commonly discussed today

Is the anti-immigrant rhetoric of this admin one of the things you do or not lean towards?

commandlinefan3• 8 months ago

being born here is the only reason that I'm considered a citizen

What was the test for citizenship before the 14th amendment?

hrunt• 8 months ago

What was the test for citizenship before the 14th amendment?

Basically, the same. Inglis v. Trustees of Sailor's Snug Harbor (1830) established:

The rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign is a subject; and, e converso, that every person born without such allegiance is an alien. . . . Two things usually concur to create citizenship; first, birth locally within the dominions of the sovereign; and secondly, birth within the protection and obedience, or in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign, as such, de facto.[0]

It excluded slaves and it excluded Native Americans. Native American US citizenship was established in 1924 by statute.[1]

[0] https://en.wikipedia.org/wiki/Citizenship_Clause#cite_ref-4

[1] https://www.bia.gov/faqs/are-american-indians-and-alaska-nat...

tastyface• 8 months ago

That depends. How light is your skin color?

jswelker5• 8 months ago

I'd actually entertain a ban on birthright citizenship _for all citizens_.

Imagine as a thought experiment that everyone in the US had to go through the immigration process to earn a place here. If you are born here, you have a green card for 20 years or so, and if you aren't the kind of desirable person we want in this country, you get a one way ticket somewhere else. We don't need freeloaders! Maybe every 10 years you can reapply if you are not accepted.

Imagine how different our education and child rearing processes would be if the stakes were made real.

Dystopian? Yes. But that is the dystopia we are already heading towards for many people who would otherwise be future citizens.

RajT884• 8 months ago

You may enjoy the book Starship Troopers.

eesmith2• 8 months ago

Where might this somewhere else be?

We already see that the US needed to pay El Salvador to accept its prisoners, and the UK pay Rwanda to take asylum seekers. It's hard to think of a country which will accept people the US considers to be freeloaders, except by taking considerable compensation .. or by threat of military force, which is also expensive.

If you want a dystopian future, just kill them.

jswelker5• 8 months ago

My friend, this is America. We already have so much experience relocating displaced undesirable native peoples into marginal lands where they can cosplay independence and autonomy. Oklahoma is pretty much taken, but I think we can spare Arkansas, Kentucky, and a few others.

I know a lot of people from high school for whom this would be a big step up in life actually.

US Supreme Court agrees to hear case challenging birthright citizenship

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