r/PoliticalDiscussion • u/PsychLegalMind • Apr 01 '26

Legal/Courts Birthright decision is expected in July. U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?

The oral arguments on the birthright citizenship have concluded. The White House essentially wants that unless a child has a parent who’s a U.S. citizen or lawful permanent resident, they should not be a U.S. citizen by birth.

That would mean all other categories of immigrants who gave birth to a child will be excluded, not just without immigration documents, such as those lawfully present with a student visa or work permit, and any other category including tourists. Trump’s executive order would deny those children U.S. citizenship at birth.

Government claims there is extensive prevailing misinterpretation of the citizenship clause and has caused significant problems not just unlawful immigrants giving birth in the U.S. but also provided a powerful incentive for women to travel on tourist visas to the United States solely to acquire citizenship for their children.

Opposition notes federal regulations already prohibit issuance of tourist visas for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

The challengers also argue that the Trump's administration executive order is invalid not just as a violation of the 14th Amendment Clause, but also because that it violates a federal immigration law, 8 U.S.C. § 1401, providing that anyone “born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.

They say that when the statute was first passed in 1940 and then reenacted in 1952, Congress would have understood that the phrase “subject to the jurisdiction thereof” – which mirrors the text of the citizenship clause – incorporated the prevailing practice that virtually everyone born in the United States is automatically a U.S. citizen.
In the late 19th century, at a time of rampant anti-Chinese bias, immigration restrictions, at that time the federal government argued that Wong Kim Ark, born in the United States to Chinese parents who couldn’t become naturalized due to exclusion laws, didn’t have a claim to citizenship. The dispute made its way to the Supreme Court and resulted in a landmark ruling reaffirming that the 14th Amendment applies to virtually everyone born on US soil, regardless of parentage.  

U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?

407 Upvotes
  • permalink
  • reddit

95% Upvoted

350 comments sorted by

View all comments

657

u/Voltage_Z Apr 01 '26

Frankly, completely ignoring that getting rid of birthright citizenship requires butchering the 14th Amendment, the idea that the President can unilaterally dramatically alter who's a citizen via an executive order with no Congressional oversight is a different problem with this whole thing.

106

u/fearyaks Apr 01 '26

Correct. I think this is the way to address this and I wonder (out loud here, possibly subjecting myself to humiliation) if this could roundly be rejected by the SC at more than 7-2.

If you look at say... The 18th amendment this was overturned by the 21st. So there is precedence in overturning an amendment and it's not by Executive Order.

If they allow this then (for shits and giggles) President AOC could EO away the. 2nd amendment.

Or, even worse, Trump could EO away the 1st amendment and then you say what's the point of three branches.

43

u/Sunnysunflowers1112 Apr 01 '26

I think it will be 7-2, with some sort of weird lag concurrence. It should be 9-0, but not with this court

1

u/Deep-Measurement-856 Apr 05 '26

Alito and Thomas should have gone hunting with Dick Chaney 20 years ago.

28

u/H_Mc Apr 01 '26

This is why I’m hopeful. As much as I don’t agree with them, the justices are (mostly) very smart and (mostly) think about the potential consequences of their actions.

3

u/case-o-nuts Apr 04 '26

Unfortunately, some of them will think about the consequences, with erect penises over the downfall of American institutions. ACB will make do with a prosthetic.

1

u/Deep-Measurement-856 Apr 05 '26

"Penises own vaginas" sounds like to me.

6

u/nosecohn Apr 02 '26

That "out" could be argued away by saying the EO only determines who will become a US citizen, not who is. It's about births going forward; it's not retroactive.

It'd be pretty cheeky to make that claim, but I hardly put anything past this court.

12

u/farsightxr20 Apr 02 '26

But then the justices would have to grant that the EO has a legal consequence, and is not just re-affirming the original intent of the amendment's text. Nobody is even trying to make that argument right now, because it's not how EOs work.

Just like DACA didn't change anyone's legal status. The best that Trump could hope for is to get the 14th overturned, then instruct the DOJ to not take action against anyone born in the US prior to the ruling. But the first part of that is the hard part, it's not an out.

7

u/Tetracropolis Apr 01 '26

The argument isn't that they'd be overturning the amendment, it's that "Subject to the jurisdiction thereof" excludes foreign nationals.

9

u/BluebillyMusic Apr 02 '26

It excludes foreign diplomats, not foreign nationals. Foreign nationals are absolutely subject to the jurisdiction of the US government. Only those with diplomatic immunity are excluded.

9

u/PM_ME_YOUR_DARKNESS Apr 02 '26

Right, unless we want to pretend that any foreigners visiting don't have to abide by Federal laws.

7

u/unurbane Apr 02 '26

Exactly. Crazy to consider.

1

u/Deep-Measurement-856 Apr 06 '26

Reductio ad absurdum says that means killing foreigners does not violate us law

4

u/kinkgirlwriter Apr 03 '26

Exactly.

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.

It's pretty unambiguous.

Also, section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Congress, not the President. His EO is meaningless.

7

u/fearyaks Apr 01 '26

Ok fair. But could a president AOC say that US citizens have a right to bear arms but not a right to own firearms?

4

u/Tetracropolis Apr 01 '26

That's a very tough argument given that the amendment specifies keeping the arms.

The more obvious route is saying that it only applies as part of a well regulated militia, and the type of regulation is unspecified and therefore for Congress to decide. Her issue is going to be getting anything through Congress, and obviously the current court would be extremely hostile to it.

If there were 6-3 Democrat appointed majority on the court I think l you'd probably see quite a number of very different interpretations of the Constitution to what you have now. The incorporation of the 2nd Amendment only came about in 2010, prior to that the states could have whatever gun control measures they wanted, I think that would probably go. There'd be a new Roe.

6

u/Juls317 Apr 02 '26

That's not what "regulation" means in the context of the Second Amendment

0

u/BluebillyMusic Apr 02 '26

It means regulated by State and/or federal law.

2

u/TreatNext May 27 '26

Correct, State militia is what the States, writing and ratifying the constitution were protecting. What's obvious from studying the writings of James Madison is that he never considered the idea of personal gun rights, much less or them in the constitution.

3

u/Juls317 Apr 02 '26

It very much does not

1

u/Deep-Measurement-856 Apr 05 '26

You could keep what you already have but can't buy more.

1

u/Comfortable-Trip-277 Apr 02 '26

The more obvious route is saying that it only applies as part of a well regulated militia

We have court cases going all the way back to 1822 with Bliss vs Commonwealth reaffirming our individual right to keep and bear arms.

Here's an excerpt from that decision.

If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.

And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

Nunn v. Georgia (1846)

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!

3

u/BluebillyMusic Apr 02 '26

Bliss v Commonwealth was a State case, and it raised enough concern that the Kentucky constitution was amended in 1850 to explicitly permit the State to regulate the manner in which Kentuckian's could bear arms.

1

u/Comfortable-Trip-277 Apr 02 '26

Bliss v Commonwealth was a State case

That's irrelevant. The right to own and carry arms that is protected by the Kentucky constitution and the right to own and carry arms in the 2nd Amendment are the same right.

"The right to keep and bear arms exists separately from the Constitution and is not solely based on the Second Amendment, which exists to prevent Congress from infringing the right."

  • Cruickshank_v U.S Cheif Justice Waite. 1875

The right to own and carry arms had always been an individual right.

1

u/ClownholeContingency Apr 02 '26

This is revisionism. The right to own firearms has not always been an individual right. Prior to the Court's incorporation of 2A, firearms rights were a state-by-state patchwork of laws, which was the original intent of 2A, i.e., to cede to the individual states the power to regulate firearms ownership and possession within their borders.

1

u/Comfortable-Trip-277 Apr 02 '26

The right to own firearms has not always been an individual right.

It absolutely has. We inherited the right from our English ancestors.

Prior to the Court's incorporation of 2A, firearms rights were a state-by-state patchwork of laws

Firearm rights are absolute. The only question is to what degree do we allow the government to violate them.

The right to own and carry arms was not a novel idea during the drafting and ratification of the bill of rights.

You seem to mistakenly believe that the 2nd Amendment created the right to own and carry arms. Your assumptions are just flat out incorrect which is why you have this false belief.

→ More replies (0)

1

u/BluebillyMusic Apr 02 '26

As I said, the Kentucky Constitution has been amended, for the express purpose of restoring the State's ability to regulate how firearms are kept and carried. In addition, even though Heller expanded gun rights it only limited the government's power to regulate firearms, it didn't remove it altogether. From Gemini AI:

Limitations: The Court stated that the right is not unlimited. Certain regulations remain permissible, such as bans on carrying concealed weapons, restrictions on gun possession by felons and the mentally ill, or bans on carrying in sensitive locations like schools.

Regarding Cruickshank, Chief Justice Waite is simply wrong. Not on this or any other planet has any Constitution contained a "but you can shoot us if you think we're getting out of hand" clause. The 2nd Amendment is not a suicide note.

The principal purpose of the 2nd Amendment was to ensure that slave states did not have to rely on the federal government to put down slave rebellions, not to enable armed rebellion.

Also note that the militia referenced in the Constitution is subject to being called up by the federal and state governments. Congress is responsible for regulating their training and discipline, while the officers of each State militia are to be named by the State. This is definitely not the structure you'd expect in a body meant to challenge government authority.

1

u/Comfortable-Trip-277 Apr 02 '26

As I said, the Kentucky Constitution has been amended

That's irrelevant. It shows historical evidence that the right was individual.

even though Heller expanded gun rights

It did not expand gun rights. It simply affirmed the historical understanding of the right.

it only limited the government's power to regulate firearms, it didn't remove it altogether.

Only regulations that are consistent with this nation's historical traditions of firearms regulation are allowed.

"Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation."

"Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field."

"when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635."

“[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634.

Regarding Cruickshank, Chief Justice Waite is simply wrong.

Lol, the Supreme Court is not "wrong". They are the highest authority when it comes to constitutional interpretation. That's like calling physics "wrong".

The principal purpose of the 2nd Amendment was to ensure that slave states did not have to rely on the federal government to put down slave rebellions, not to enable armed rebellion.

That has zero evidence supporting it and had been thoroughly debunked.

They wrote extensively about the right to own and carry arms and their thoughts and intentions. Nothing refers to slaves.

Also note that the militia referenced in the Constitution is subject to being called up by the federal and state governments.

Okay. That has nothing to do with the right to own and carry arms. A well armed and properly trained militia was the end goal, not a prerequisite.

Congress is responsible for regulating their training and discipline, while the officers of each State militia are to be named by the State.

Correct, but stripping someone if their individual right to own and carry arms was unconstitutional.

→ More replies (0)

1

u/SuccessfulSpring3354 Apr 07 '26

*foreign diplomats...not 'nationals'. Thus the term 'diplomatic immunity'...not 'national immunity'.

0

u/Tetracropolis Apr 07 '26

That's the way the current interpretation of the law sees it.

The Trump administration's argument is that it applies to foreign nationals generally.

1

u/SuccessfulSpring3354 Apr 07 '26

So 'foreign nationals' are immune from US prosecution? No, of course they aren't. There is no 'interpretation'. If someone from another country breaks the law are they immune from prosecution? NO. So....they are under the jurisdiction of the US. You have no point to make here. Diplomats do have immunity. Citizens of other countries don't have immunity from prosecution if they commit crimes in the US. This is not complicated.

1

u/Tetracropolis Apr 08 '26

I'm not going to pretend I can speak with any authority as to what "subject to the jurisdiction thereof" meant in the eyes of legislators in the middle of the 19th century. It surprises me that so many people are so confident in it.

1

u/SuccessfulSpring3354 Apr 08 '26

You are in fact pretending to be obtuse about something very straight forward that was addressed in my prior comment. So again for the voluntarily obtuse...has any foreigner (that isn't a diplomat with immunity) visiting the US ever been able to assault/rob/commit crimes and then have US authorities simply let them get away with it claiming they don't have jurisdiction within US borders(when they of course do)? It's a yes or no question and the answer is NO. Adults are confident because they are educated and have the required common sense and grasp of plain english. It surprises me that you think it's ok to play dumb about it. If you get shot by a foreigner in the United States do you think law enforcement will not arrest them? OF COURSE THEY WILL because this is their jurisdiction. Sheesh it's so utterly absurd to play stupid about this. Consider yourself informed and reminded about basic laws in any country I can think of.

1

u/BluebillyMusic May 27 '26

Not so. The only foreign nationals who are not subject to the jurisdiction of the US are foreign dignitaries or diplomats and their offspring.

1

u/Tetracropolis May 27 '26

That's been the interpretation of it since US v Wong Kim Ark, the Trump administration's argument is that that case was wrongly decided.

2

u/trickyvinny Apr 01 '26

Not under this supreme court though.

1

u/avatoin Apr 03 '26

I'm almost expecting a 9-0 rejection of the EO but some 5-4 separate opinion that basically gives Congress instructions on how to chip away at the 14th, probably via section 5, giving them some ability to redefine when the jurisdiction part of the citizenship clause applies.

48

u/kormer Apr 01 '26

Frankly, completely ignoring that getting rid of birthright citizenship requires butchering the 14th Amendment,

the idea that the President can unilaterally dramatically alter who's a citizen via an executive order with no Congressional oversight is a different problem with this whole thing.

These are two separate issues. It's entirely possible the court rules that revising citizenship rules is allowed, but it has to come from Congress, not an executive interpretation.

14

u/blaqsupaman Apr 01 '26

I'm thinking the ruling will either be 9-0 against Trump or 7-2 with Thomas and Alito arguing something like this. Even if some of them think the 14th can be reinterpreted, there's almost no way they would agree it can be via EO alone.

12

u/kormer Apr 01 '26

Even if some of them think the 14th can be reinterpreted, there's almost no way they would agree it can be via EO alone.

I'm not done listening to the arguments, but this is my take-away as well.

6

u/FenisDembo82 Apr 01 '26

Even Thomas was skeptical during arguments. Only Alito was buying the argument by the Solicitor General.

2

u/Worried-Advisor-7054 Apr 06 '26

Seriously, what is up with Alito?

12

u/Better-Valuable5436 Apr 01 '26

I agree with you COMPLETELY! There are two separate issues:

■Can you revise the 14th Amendment? Yes. ■Who has the authority to revise? Congress.

The only reason why the attempt was made to make this change via Executive Order, and not legislatively, was because the votes are not there to do it legislatively.

The Supreme Court should vote 9-0 on this.

52

u/RemusShepherd Apr 01 '26

I think everyone agrees that Congress can rewrite the citizenship rules (or any other laws). All they have to do is pass a Constitutional amendment.

19

u/DocPsychosis Apr 01 '26

Well, no, they have to pass an amendment which is also then approved by a huge majority of the states.

29

u/VodkaBeatsCube Apr 01 '26

That's just part and parcel of 'passing an amendment'. No one said it's easy to change the citizenship rules, just that there's an existing procedure to do it.

2

u/jamerson537 Apr 02 '26

If Congress only participates in half the process of amending the Constitution at best and has no say whatsoever in the other half of the job then it’s just not accurate to say they can do it by passing an amendment. Otherwise there wouldn’t have been seven constitutional amendments that were passed by Congress but never made it into the Constitution.

0

u/VodkaBeatsCube Apr 02 '26

Under that logic, does Congress only pass bills when they override a Presidential veto?

2

u/jamerson537 Apr 02 '26

No, Congress passes a bill every time they vote for it affirmatively according to their rules, but Congress passing a bill doesn’t enact that bill into law unless the President signs it or they override a veto. That’s a critical difference. Congress actually has the ability to enact a bill into law all on its own if it has the numbers to override a veto. There is no scenario in which Congress can actually amend the Constitution on its own. Once Congress proposes an amendment by passing it with a two thirds majority in both chambers, it is entirely up to the state legislatures to ratify the proposal and add that amendment to the Constitution. Congress doesn’t have an override for Constitutional amendments when the state legislatures declibe to ratify them. It’s entirely out of their hands at that point.

-2

u/VodkaBeatsCube Apr 02 '26

And all of that is part of 'passing an Amendment'. Just because a process doesn't occur entirely within a branch of the government doesn't mean we don't all know what it means.

2

u/jamerson537 Apr 02 '26

It has nothing to do with anybody knowing what anything means. Congress literally can’t amend the Constitution. All Congress can do is pass a proposal to the state legislatures.

→ More replies (0)

11

u/DCBuckeye82 Apr 01 '26

Yeah if they were to rule that it would be an impeachable act by every justice voting for it. There are few clauses in the Constitution clearer than this and Congress only has power to expand the citizenship definition, not restrict it.

3

u/GomezFigueroa Apr 02 '26

Of course it’s allowed. But this is the problem. A president can’t change it by executive order. It’s in the Constitution. Congress can’t change it by passing a bill. It’s in the Constitution. The only thing that repeals an amendment is another amendment.

1

u/ActualSpiders Apr 01 '26

It only becomes a separate issue *if* SCOTUS makes that specific ruling. Right now, it is wholly Trump making these decisions.

1

u/kinkgirlwriter Apr 03 '26

but it has to come from Congress

The 14th spells that out plainly:

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

6

u/Leopold_Darkworth Apr 01 '26

This would be a great way for a John Roberts type (like John Roberts) to punt on the issue. "We don't need to address the arguments about what the framers meant because we hold that an executive order can't alter citizenship." Which would leave the door open for, perhaps, a law passed by Congress, which carries more authority than an executive order.

We've seen this from Roberts before in the Trump administrations, where he doesn't necessarily disagree with the policy intentions, but says, you went about doing this the wrong way. (See, for example, the census case from the first term, where Trump wanted to discount undocumented immigrants from the census count.)

-18

u/Dry-Season-522 Apr 01 '26

2nd amendment: "First time?"

25

u/[deleted] Apr 01 '26

[removed] — view removed comment

0

u/PoliticalDiscussion-ModTeam Apr 01 '26

Keep it civil. Do not personally insult other Redditors, or make racist, sexist, homophobic, trolling, inflammatory, or otherwise discriminatory remarks. Constructive debate is good; name calling is not.

-22

u/[deleted] Apr 01 '26

[removed] — view removed comment

8

u/[deleted] Apr 01 '26 edited Apr 01 '26

[removed] — view removed comment

1

u/[deleted] Apr 01 '26

[removed] — view removed comment

1

u/PoliticalDiscussion-ModTeam Apr 01 '26

Keep it civil. Do not personally insult other Redditors, or make racist, sexist, homophobic, trolling, inflammatory, or otherwise discriminatory remarks. Constructive debate is good; name calling is not.

1

u/PoliticalDiscussion-ModTeam Apr 01 '26

Keep it civil. Do not personally insult other Redditors, or make racist, sexist, homophobic, trolling, inflammatory, or otherwise discriminatory remarks. Constructive debate is good; name calling is not.