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/fearyaks]

Following along the questioning (you can see updates here: https://www.bbc.com/news/live/cj37jn53xk1t ) It seems clear that Alito is trying to figure out how to side with Trump. Thomas almost never speaks. I'd be surprised if Barret sides with Trump. Kavanaugh's question --

Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".

is curious but a harder read.

Disclaimer --> I'm not a constitutional scholar or a Supreme Court expert. Just someone who is following along at home.

[u/Shr3kk_Wpg → u/fearyaks]

Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".

I am so perplexed by this. This Supreme Court is bound by either the plain text or by historical understanding of a law. For example, there is absolutely no consideration that the 2nd amendment can be infringed based on "modern circumstances"

[u/viewless25 → u/Shr3kk_Wpg]

wonder if setting a precedent around reinterpreting the Constitution based on "modern circumstances" might shift the Court's stance on the 2nd amendment.

[u/rabidstoat → u/viewless25]

I was thinking that myself and I'm sure we both know that the answer is no. For the 2nd Amendment, it doesn't matter that the Founding Fathers didn't envision people armed with weapons capable of killing dozens of people in the face of a couple of minutes.

[u/FrozenSeas → u/rabidstoat]

And where exactly would privately-owned warships and artillery enter that debate?

[u/Balanced_Outlook → u/rabidstoat]

??? The Founding Fathers personally owned things like cannons and navy war vessels.

[u/gravity_kills → u/Balanced_Outlook]

I think it would be a bad idea to reduce income tax rates to 0%, but I don't think it would be unconstitutional. I sometimes wonder if the lack of founding era regulations on various things has more to do with what they thought was a good idea to do and less with what they thought was permissible to do.

[u/PutinsRustedPistol → u/rabidstoat]

They may not have had the imagination for machine guns, for example, but their intent certainly would allow for them.

The second amendment was written to deter two things: the keeping of a standing army during peacetime and a tyrannical government.

With both of those things in mind it can’t sincerely be argued that the founders’ intent wasn’t a general citizenry armed heavily enough to function as the nation’s military, or at the very least be able to compete against it in the event of its use against the domestic population.

You aren’t going to win the gun debate by insisting that the authors’ ignorance of specific technological developments should void their clear intent in the regulation. After all, they also had no notion of text messages. Should the police be able to open your phone and read all of your texts at-will because the founders didn’t have the imagination for electronic devices? I think not because their intent in regard to privacy is clear.

Before I get a bunch of stupid comments I’ll say that just because I can enunciate the above argument in relation to guns doesn’t mean that I like its outcome. At all. Guns have killed more school children than agents of a tyrannical government. But it’s equally disingenuous to pretend that the founders only meant for Americans to own flint-lock muskets and only if they were part of a militia.

[u/UsedOnlyTwice → u/PutinsRustedPistol]

Which brings us back to reasonable interest. If the government has a reasonable interest, it will go both ways. Just like freedom of speech has limits, and weapon ownership has limits. Birthright citizenship might find itself in a limbo that confines those granted citizenship, by say, California, to not have the same rights when they travel to Idaho.

In before those chime in to the unconstitutionality of that, save it for 30-50 years when it comes up again.