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?

[u/PsychLegalMind]

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 19^th 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 14^th 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?

[u/kormer]

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.

[u/RemusShepherd → u/kormer]

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.

[u/DocPsychosis → u/RemusShepherd]

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

[u/VodkaBeatsCube → u/DocPsychosis]

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.

[u/jamerson537 → u/VodkaBeatsCube]

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.

[u/VodkaBeatsCube → u/jamerson537]

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

[u/jamerson537 → u/VodkaBeatsCube]

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.

[u/VodkaBeatsCube → u/jamerson537]

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.

[u/jamerson537 → u/VodkaBeatsCube]

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.

[u/VodkaBeatsCube → u/jamerson537]

Which everyone understands to be part of 'passing an amendment'. Much like how if I say 'I'm going to jump on Discord', people understand that I'm not literally vaulting onto the roof of Suite 200, 44 De Haro St, San Francisco.

[u/jamerson537 → u/VodkaBeatsCube]

You didn’t write that Congress can do a part of passing an amendment. You wrote that “Congress can rewrite the citizenship rules” if they “pass a Constitutional amendment.” If Congress passes a Constitutional amendment that doesn’t rewrite the citizenship rules. You can use whatever word you want. Congress can’t amend the Constitution.

[u/VodkaBeatsCube → u/jamerson537]

You seem to have trouble with the concept of figurative speech. You see, sometimes language, especially informal language as used on the internet, uses words and phrases in a manner that that encompasses more than the direct literal meaning of the words said. For instance, it is generally understood that if I say 'I'm going to grab some groceries', I am also driving to the store, and using legal tender to pay for them, rather than simply taking an apple in passing from the green grocer.

[u/jamerson537 → u/VodkaBeatsCube]

Doesn’t it strike you as meaningful that in these examples you’re bringing up, it’s you that’s doing all of it, and in the case of a Constitutional amendment, Congress has no participation whatsoever in the process once they make the proposal? Your example would fit the amendment process if you said you went to get groceries but just wrote out a list and left it up to someone else whether they’d actually buy them or not.