At the
I presume this case will ultimately make it to the Supreme Court and I have no idea what the Court will find. My intuition is that the case for the children for temporary residents is different than that for permanent residents.
At the
I presume this case will ultimately make it to the Supreme Court and I have no idea what the Court will find. My intuition is that the case for the children for temporary residents is different than that for permanent residents.
I thought the Washington District Court judge’s comments off the bench were intemperate. If the DOJ attorney made an argument that was frivolous, then the judge should have moved for sanctions or indicated that he would entertain such a motion. The judge comes across as semi-retired crank (senior status since 2006) that probably got frustrated by overly abstract arguments that will ultimately be decided above his paygrade.
Here is what Justice Posner wrote about birthright citizenship in Oforji v. Ashcroft (2003):
“We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship, rather than to subject U.S. citizens to the ugly choice to which the Immigration Service is (legally) subjecting these two girls. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it. Peter H. Schuck Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 116-17 (1985); Dan Stein John Bauer, “Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants,” 7 Stanford L. Policy Rev. 127, 130 (1996). The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”
Posner was a member of the bar when he wrote that and his “law and economics” philosophy is not in tune with the present court. The quoted language is from his concurrence and not precedent.
IANAL and all that, but overturning a century+ of precedent via the courts is not something that I would support.
If this is what the country really wants, then Congress can first pass a law restricting birthright citizenship and then we can see what the courts do with that. If they strike it down, then change the Constitution.
I think this is all a sideshow. I don’t think birthright citizenship is a problem, much less a big one that requires the massive changes advocates wish for. It won’t solve the things Americans don’t like, such as chaos at the border, not enforcing existing laws, and gaming of the system in what looks like a de facto open borders situation. Getting a handle on that and controlling who can come into the country in a rational way will solve 90% of more of the concerns about birthright citizenship.
Changing this should be done by changing the law. Using executive orders to overturn over 100 years of precedent should be avoided. Regardless, as Andy points out it really wont change very much. Besides, he is behind on a lot of other stuff. He said he would end the Ukraine-Russian war in 24 hours and still hasn’t done so. Quote where he says that at link.
https://apnews.com/article/trump-russia-ukraine-war-un-election-a78ecb843af452b8dda1d52d137ca893
Steve
Petty much, steve?
Find that giant valve yet Drew?
Steve
The strategy is not to overturn the Wong Kim Ark case, it is to limit it to its facts. When WKA was born in the U.S., the Burlingame Treaty gave Chinese unrestricted immigration rights into the U.S. (preempting state & local controls) and guaranteed privileges of residence and travel in the U.S. The treaty would be renegotiated and face increasingly hostile laws leading up to the Chinese Exclusion Act. The Chinese went from most favored immigrant group to least.
In any event, the EO does not apply to people like WKA whose parents were lawful permanent residents under the Treaty. It applies to two classes, (1) children of parents not lawfully in the country, and (2) children of parents lawfully in the country, but only on a temporary status. This is designed to give courts an opportunity to analyze both.
Whatever its prospects, this is how common law Constitutions work, different situations may result in different outcomes. It shows to me a careful legal design (including applying to children born 30 days after the order to avoid issues of reliance interests).
PD,
One unusual situation that isn’t discussed is foreign military personnel stationed in the US. I live, for example, near the NORAD & Northcom headquarters near Colorado Springs and there are foreign military personal who do 3-4 year tours here, similar to how US military personnel do tours of duty in other countries. These people bring their families with them and sometimes have a child here. Currently, those children are eligible for US citizenship as these people are not considered diplomats, and the SOFA agreements specifically state military personnel are subject to the local country laws.
Presumably from your explanation, they would fall under the “temporary status” provision, were that to change. There are potentially other unusual edge cases that could potentially complicate things a great deal.
Any court decision would expound the principles it was applying. Temporary is itself not a fixed concept. Certainly, the government will highlight criminal cases like this one:
https://apnews.com/article/chinese-pregnant-women-birth-us-citizenship-445f70ca940217da7f44aa2185c657e3
Assuming the case gets to the Supreme Court I think situations involving the military will be brought up. That might be enough for the court to rule that the temporary provision is overbroad, in which case the EO gets revised. Trump could revise the EO at any time.
And none of this is to say that the SCOTUS wouldn’t rule that this is a matter of immigration law which Congress should address, which would be at least a little victory given the main complaint against legislating in this area is that its unconstitutional.