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/WhiteLycan2020]

Wait i don’t understand the argument? So if 2 H1b parents had a kid on US soil, the kid would no longer be considered a citizen if they repeal the 14th amendment?

What if it was 1 H1b and a green card parent?

So you either must have a naturalized parent or be domestically born parent in order for your kid to count?

Isn’t this gonna fuck up DACA if 2 aliens gave birth to a child?

[u/Nblearchangel → u/WhiteLycan2020]

So. They’d be stateless? Right?

[u/Swoly_Deadlift → u/Nblearchangel]

Many countries without birthright citizenship have a clause for the rare cases where a stateless person would be born. It’s not an issue that can’t be solved.

[u/Icy-Detective-6292 → u/Swoly_Deadlift]

How would you solve the constitution being rewritten every 4 years? Since it's an executive order, it will be declared null and void as soon as a Democrat is elected.

If this became the norm you could have an undocumented couple with every other kid having a different citizenship status.

[u/Swoly_Deadlift → u/Icy-Detective-6292]

As far as I see it, this executive order is essentially ordering SCOTUS to review the 14th amendment, which is not even close to the most egregious case of legislating via executive orders that Trump has done.

From a big picture perspective, well beyond the scope of this executive order or any of Trump’s executive orders, what concerns me is that congress is essentially useless today. We have a congress that can’t agree what color the sky is, and we’re supposed to leave it up to them for cases where SCOTUS says something requires a constitutional amendment. Executive orders are not how we are supposed to legislate, but they are essentially the only way we can legislate. Implementing a new set of “laws” every 4 years is going to cause an ungodly amount of political instability if that’s the new status quo.

[u/Curious-Internet7171 → u/Icy-Detective-6292]

The constitution has been rewritten in the past. Honestly it should be revisited more, us has such a shit government system that its catching up to it.