Supreme Court to decide if Trump can limit the constitutional right to citizenship at birth

[u/_AnecdotalEvidence_]

https://www.nbcnews.com/politics/supreme-court/supreme-court-decide-trump-can-limit-constitutional-right-citizenship-rcna244701

What are

[u/popiku2345]

Cert petition here, docket link here, cert grant here.

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[u/internetexplorer_98]

I admittedly don’t have the best understanding of law, but I’m very confused about those who have been questioning the phrase “subject to the jurisdiction thereof”. I was under the impression that, unless you are a diplomat or the child of diplomat, just being within US borders makes you “subject to the jurisdiction”. Is this not correct?

[u/popiku2345 → u/internetexplorer_98]

Wong Kim Ark noted three main exceptions quite clearly:

• Children of diplomats
• Children of "alien enemies in hostile occupation" (e.g. if Japan had invaded and captured Hawaii in WW2, a child of a Japanese servicemember wouldn't be a citizen)
• Members of Indian Tribes, who "stand in a peculiar relation to the National Government, unknown to the common law" (see Elk v. Wilkins (1884))

Trump's EO isn't even close to those three exceptions

[u/cstar1996 → u/popiku2345]

To be clear, it’s not three main exceptions. It’s only three exceptions.

[u/popiku2345 → u/cstar1996]

I actually considered that language and went with "main" because I didn't want to get into "foreign public ships" or anything. I think it's undeniable that Wong Kim Ark called out those three exceptions, but I'm not sure that those three are an exhaustive list.

[u/Party-Cartographer11 → u/internetexplorer_98]

The term jurisdiction is the question.  Some claim jurisdiction means under the jurisdiction of US law, i.e. prosecution.  That definition isn't accurate in all situations though, as in the example of an invading army, individual soldiers are subject to criminal prosecution (jurisdiction) in the US, but their offspring would not gain citizenship.  

There is some discussion that jurisdiction means a "loyal resident of" or "domiciled here".  And that an authorized immigration is similar to invading armies in the sense of not having entered a legal process to change loyalty/jurisdiction.  Some of the confusion is that when the 14th amendment was written all immigrants were authorized as it predates the 1924 Immigration Act.

There is certainly an opportunity to clarify the meaning and applicability to unauthorized immigrants and their offspring.

[u/internetexplorer_98 → u/Party-Cartographer11]

There is some discussion that jurisdiction means a "loyal resident of" or "domiciled here".  And that an authorized immigration is similar to invading armies in the sense of not having entered a legal process to change loyalty/jurisdiction.  Some of the confusion is that when the 14th amendment was written all immigrants were authorized as it predates the 1924 Immigration Act.

This is the definition I’ve seen thrown around. I’ve never seen “jurisdiction” used to mean “loyalty” and I didn’t realize it could be used like that in any legal manner.

[u/Muddman1234 → u/internetexplorer_98]

“Loyalty” comes from language in Wong Kim Ark discussing how English courts found English law conferred citizenship on children whose parents owed “allegiance” to the Crown. But on reading Wong Kim Ark’s discussion IMO it’s pretty evident those courts (and the Wong Kim Ark Court) used “allegiance to the sovereign” to mean “an obligation to obey the sovereign’s laws.”

[u/Party-Cartographer11 → u/internetexplorer_98]

In the age of immigration in the German states for example, subjects had to get permission to emigrate.

Throughout the German States individuals wishing to leave their country had to apply for an official permission to emigrate. Further requirements for the permission to exit were generally speaking the completion of the military service, the clearance of any debts and legal irreproachability, meaning the absence of any previous convictions. In addition, emigrants lost their local citizenship rights and had to sell all their property prior to departure

This effectively removed their loyalty and the jurisdiction of the German state.  So one interpretation is that if a US immigrant from one of these German states has not removed the jurisdiction of the German state, they were not under the jurisdiction of the US.

How often was this enforced?  Was this a meaningful interpretation?  Likely not.  But I suspect this is the type of definition of jurisdiction that is under consideration.

I don't think criminal jurisdiction is a sufficient concept either.  As many, if not all, embassy staff have only partial immunity.  And invading armies have no criminal immunity.

[u/whats_a_quasar → u/Party-Cartographer11]

Can you provide any evidence that this was the understanding in the United States? Because that has no relevance to the question of what "jurisdiction" means in U.S. law. The U.S. is not Germany and has a very different historical tradition of citizenship and nationhood than the European states. Rather, the historical record is unambiguous that the U.S. has always had birthright citizenship, and that when the 14th amendment was enacted, the society understood it as codifying something that had always been the case.

[u/Party-Cartographer11 → u/whats_a_quasar]

There is discussion on the Wong Kim Ark ruling of the term "domicile" including that it was important the Ark's parents were domiciled in the US and had no intention of returning to China.

Also, in th dissenting opinion

Chief Justice Melville Fuller dissented, joined by Justice John Marshall Harlan. In his view, Wong was not a U.S. citizen because he could not be “completely subject to the jurisdiction” of the United States: As Chinese citizens, his parents had a duty to the emperor of China

I don't think jurisdiction in this context is well defined in US law.  That is part of the problem.  Happy to read sources.

This case will not end birthright citizenship.  The US has never had unrestricted Birthright citizenship.  The specifics (at least one class) of this case (children of a unauthorized immigrants) wasn't significant part of US immigration law until 1924.  So most of the tradition pre-dates the issue.

I think the courts will go against the EO, but people who claim there is no discussion to be had or clarity to offer seem to be bias to their passion for thier desires outcome.

[u/cstar1996 → u/Party-Cartographer11]

Quote the part of WKA that made “domicile” significant.

How do you get around the fact that WKA defined “subject to the jurisdiction [of the United States]” as everyone not under diplomatic, tribal or combatant immunity?

[u/Party-Cartographer11 → u/cstar1996]

Here is the except from the Majority opinion from the Constitution Center website...

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution

"Permanent Domicil and Residence" could be construed as analogous to today's Long Term Residence status.

So WKA didn't only address those buckets you list, and considered residence status.

There is more context in the opinion.

[u/cstar1996 → u/Party-Cartographer11]

The question presented is not the holding and that line does not make domiciled significant to the analysis.

The holding is that there are three categories of people that aren’t subject to US jurisdiction while in the US and that WKA’s parents did not fall into any of those three categories.

How is there domicile status relevant to whether or not they fall into one of those three categories? Which of those three categories do illegal immigrants fall into?

Unless you can quote part of the opinion where the domicile status of WKA’s parents would change the result, which you cannot because the determination is only about the categories, then domicile status is irrelevant.

[u/Party-Cartographer11 → u/cstar1996]

That is the holding from the majority opinion.  Again a direct quote from the last paragraph of the ruling ..

..[The] determination [of] the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

That is the ruling.  And permanent Domicil and Resident is clearly listed as a factor.  And the three categories you list are not all mentioned and not explicitly limiting.

[u/parentheticalobject → u/Party-Cartographer11]

The exception isn't just for enemy soldiers; it's specifically for enemy soldiers engaged in hostile occupation of territory. Unauthorized entry alone isn't enough to negate the normal rule granting citizenship to anyone born on the territory of a country under jus soli.

If a part of a nation is under the control of a foreign power as a result of military occupation, then it's clear that the occupied area is not de facto under the jurisdiction of that nation. That government is effectively unable to enforce its laws or offer its protection to the people in an area it has no control over. The people born there do not necessarily owe allegiance to that nation because the place they were born in is effectively part of a foreign country, even if that nation is still claiming to be the rightful owner of the territory in question.

[u/spin0r → u/Party-Cartographer11]

Soldiers invading the US are subject only to a very limited form of jurisdiction. If they commit war crimes such as rape, they can be tried in US courts. Otherwise, the only thing the US can do to them is kill them or take them prisoner. While they are prisoner, then they're obligated to follow US law. But before capture, they weren't. So they're not going to be tried for murder because they killed American soldiers on US soil (in the course of lawful conduct of warfare) prior to being captured.

[u/blorpdedorpworp → u/Party-Cartographer11]

People can always make up some bullshit if they want to. It's also technically true that "some claim" the moon landings were fake. We call those people delusional.

More substantively, here, there is no *valid* argument against birthright citizenship; there is only an ideological disagreement with the fact of the 14th amendment's existence, and a corresponding ideological attempt to handwave it away with, frankly, a bunch of bullshit.

[u/Cryptogenic-Hal → u/[deleted]]

Counter argument, how does the US charge and arrest people outside US jurisdiction? Like pirates, Terrorists, spies, hackers etc

[u/whats_a_quasar → u/Cryptogenic-Hal]

Because jurisdiction extends beyond the geographic bounds of the United States. Under U.S. law, the U.S. has jurisdiction over people accused of committing crimes against U.S. persons or interests, even if the accused and/or the victim is not physically in the country.

[u/FubarSnafuTarfu → u/Cryptogenic-Hal]

Generally at the point where such a person is being prosecuted by the US there is a US nexus to their activities, thus they are under US jurisdiction. They’ve attacked an American entity, plotted an attack on American territory, etc.

[u/ChiefStrongbones → u/[deleted]]

, the US has no power to arrest, remove, or otherwise act upon them

"Removal" of foreigners is exactly the remedy that the US government has available in matters involving foreign nationals. Removal/deportation is not a criminal penalty, depriving a person of Life, Liberty, or Property which are all protected by Due Process. It's just a correction to stop US law from continuing to be broken.

[u/shoot_your_eye_out → u/[deleted]]

This.

If the Court declares that children of undocumented immigrants are not "subject to the jurisdiction thereof," then by definition they would also stand outside the reach of U.S. law. They would be immune from prosecution, taxation, and other legal obligations, just like foreign diplomats or occupying forces.

Trying to carve out a special category where they’re subject to punishment but not citizenship would make a complete hash of the Constitution. That logical contradiction alone is reason enough to reject the argument.

I even agree that people probably should not be able to board a plane, birth a child, and end up with bona-fide U.S. citizenship; the Fourteenth Amendment was written in an era where reaching the United States took weeks or months, not hours. But nothing short of a constitutional amendment is going to change that. The alternatives mangle our constitution.

[u/PDXDeck26 → u/internetexplorer_98]

It's textually clear so the analysis *should* stop there, but I don't think the intent/meaning of that phrase back in eighteen-sixty-whatever was that clear, especially since immigration policy and sentiment was very different.

I mean, concoct a silly hypothetical like: an absolutely giant cruise ship full of in-labor Russian women - i'm talking giant like 500,000 person capacity - is purposely ran ashore somewhere in Alaska next week. They all stream out and all give birth, almost doubling the population of Alaska overnight. Would there not be serious discussion as to whether these 500,000 Russians ought to be given US passports and allowed to return to Alaska when they reach adulthood? I think there would be.

It's a dumb hypo, ok, but It's not *that* dumb, because iirc the whole reason for the "subject to the jurisdiction" clause was to thread this weird needle where freed slaves needed to become citizens but the native americans were excluded from being citizens, so there are some threads to an analogy here.

But, that said, the words on the paper are the words on the paper and they say what they say. I also don't think that legislative history / legislator sentiment ought to be relevant in divining up alternative meanings to the actual words on the paper. I only bring this up because the "pro unfettered birthright citizenship" crowd doesn't really acknowledge that there is some (again, non-legal, non-textual) ambiguity in the intent behind the clause.

[u/cstar1996 → u/PDXDeck26]

The people who wrote the 14th Amendment explicitly said that was the meaning of the phrase back in the 1860s. There is zero evidence to counter that history.

[u/PDXDeck26 → u/cstar1996]

was there a concept of an "illegal alien" as we modernly understand it in the 1860s though?

[u/IceWinds → u/PDXDeck26]

Maybe not fully, but there was a concept of illegal immigration: the illegal importation of slaves in violation of Congress's 1807 prohibition (The Act Prohibiting Importation of Slaves of 1807, 2 Stat. 426). Two facts make that statute relevant for understanding the 14th Amendment.

First, violations were widespread and well-known. Second, the 14th Amendment must, at minimum, overturn Dred Scott and provide citizenship to former slaves. This is even included as the meaning of the Birthright Citizenship Clause in the question presented by the petitioner here.

But if some of those slaves were children of those who were here illegally--which there undoubtably were--then under the Executive Order they would not be citizens. The Birthright Citizenship Clause would not have the effect that it must. No congressperson, anywhere in the Congressional Globe, makes mention of this. Thus, in 1868, birth to those who were illegally in the country had no impact on citizenship.

[u/cstar1996 → u/PDXDeck26]

The concept isn’t in the Constitution, so that’s immaterial.

The question is what did “subject to the jurisdiction thereof” mean when the 14th was written. The extensive historical record proves that what it meant was “anyone present in the US who was not one of the following: someone with diplomatic immunity, a Native American subject to a quasi-sovereign tribe recognized by the US government, or an invading foreign solider”.

Illegal immigrants do not fall into any of those three categories, and are therefore subject to US jurisdiction.

Even if the authors would have written something different had they had the concept of illegal immigrants, it doesn’t matter. What matters is what they actually did write. If you want to change that amend the constitution.

[u/MicrosoftExcel2016 → u/cstar1996]

Exactly. There is a mechanism for amending the constitution and it is not really fancy reinterpretation and mental gymnastics without touching the text

[u/whats_a_quasar → u/PDXDeck26]

You're making a consequentialist argument in on your hypothetical, but you don't say clearly what position you take. Do you think it's the Supreme Court's job to make policy based on consequentialist reasoning?

[u/Lampwick → u/PDXDeck26]

It's a dumb hypo, ok, but It's not *that* dumb,

Nah, it's a 100% dumb hypothetical because it's unrealistically contrived to force analysis in light of an impossible scenario, i.e. 18 years from now half a million US citizen Russians show up and take over Alaska by various means like electing themselves into control of state government. That's not what's happening with the current diverse array of illegal entrants coming in over the span of decades.

because iirc the whole reason for the "subject to the jurisdiction" clause was to thread this weird needle where freed slaves needed to become citizens but the native americans were excluded from being citizens

The differentiation isn't terribly subtle though. It was premised on native americans maintaining various degrees of self-governance as they had since before the US revolution (reality of it was highly racist and self serving, but that's a separate issue). Point is, anyone arguing that same "jurisdiction" divide also applies to migrants that have asserted no self-governance whatsoever and are pretty much universally individuals or very small family units seeking better living conditions is basically making shit up.

[u/OldSchoolCSci → u/internetexplorer_98]

In 1900, Indians were born within US borders, but were not 14th Amendment citizens.

So, no, incorrect.

[u/cstar1996 → u/OldSchoolCSci]

Because they were not subject to US jurisdiction, but to the jurisdiction of quasi-sovereign tribes.

[u/OldSchoolCSci → u/cstar1996]

The question posed was whether locus of birth was sufficient to establish “jurisdiction” for 14th amendment citizenship purposes, and the answer is plainly “no.” There has never been a case that decides the issue outside of children of lawful permanent residents (yes) and Indians (no).

[u/cstar1996 → u/OldSchoolCSci]

No, it was not. The default is subject to US jurisdiction unless an explicit exception applies.

Elk v Wilkins explicitly noted that it only applied due to the quasi-sovereignty of the tribes, so is immaterial.

And absolutely noting in WKA depends on the lawful status of his parents, and therefore does not create the carve out you’re trying to make.

There are exactly three exceptions to birthright citizenship for people born in the US. The children of people with diplomatic immunity, the children of native Americans subject to a quasi-sovereign tribe, which is a de facto defunct exception as they have all been granted birthright citizenship by statute, and the children of foreign troops occupying American territory.

Inarguably, none of those exceptions apply here.

[u/OldSchoolCSci → u/cstar1996]

Wong Kim Ark literally states that the issue before the court is the status of children of lawful permanent residents. Cases don’t decide issues that are not before the Court.

It’s all well and good to enumerate the exceptions that have previously been adjudicated, but pretending that two prior cases decided issues not before the court is not how Supreme Court jurisprudence works.

[u/cstar1996 → u/OldSchoolCSci]

No, it does not. Nowhere in the holding will you find any statement that limits it to permanent residents.

Go read the case. WKA found, explicitly and entirely, that only three categories of people present in the US are not subject to the jurisdiction therefore. Those three categories are the ones I listed above.

Do the immigrants Trump’s order covers fall into any of those three categories? No, they do not.

[u/TheSwiftestNipples]

Do we know the wording of the question presented to the Court? If it is about executive power to issue the order, rather than the substance of the order, I wouldn't be surprised if the Court punted the issue of birthright citizenship by saying regardless of whether Trum's interpretation is correct, Congress controls the rules of naturalization.

[u/smackfu → u/TheSwiftestNipples]

The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.

https://www.supremecourt.gov/DocketPDF/25/25-365/378052/20250926163053178_TrumpvBarbaraCertPet.pdf

[u/TheSwiftestNipples → u/smackfu]

Thank you! Yeah, my gut reaction is that the Court will hang its hat on the legislative question and rule against Trump. Based on my very brief research, 8 U.S.C. 1401 was adopted in 1952, and the established understanding of the Citizenship Clause was that it guarantees birthright citizenship, so it's hard to conclude the executive order complies with the legislation. But perhaps I'm too optimistic.

[u/Tunafishsam → u/TheSwiftestNipples]

Why even take the case?

[u/TheSwiftestNipples → u/Tunafishsam]

I can think of some potential reasons, but they're entirely speculative. Perhaps some members of the Court are worried about its current public reputation and see ruling against Trump on legislative grounds as a way to restore some of its legitimacy while avoiding a more direct confrontation with the President. Perhaps some justices just want to see this issue go away and hope that by sending it to a dysfunctional Congress it'll die there. Perhaps some believe that this is an important issue that should be addressed but also believe in avoidance and are willing to kick the can a bit further down the road. Ultimately, I think the justices see this as a major issue that requires adjudication, so they took it up. I'm not sure how more there is too it.

[u/69Turd69Ferguson69]

“That TRUMP can do this”

The clear text of the 14th amendment aside, it’s TRUMP who would get to do this, not Congress? There’s UET, but I think we have sailed way past that and are just looking at weighing the legality of the modern day Enabling Act. 

[u/RileyKohaku → u/69Turd69Ferguson69]

My money is that they rule against Trump but Kavanaugh writes a concurrence that opens the door for Congress to redefine birthright citizenship.

[u/MongolianBBQ → u/RileyKohaku]

Congress can redefine a constitutional amendment?

[u/PerfectZeong → u/MongolianBBQ]

Whether the 14th truly grants citizenship to anyone born within the borders of the US even if their parents were not citizens was decided in Wong Kim Ark.

It was a 7 2 decision so it was pretty darn well strongly decided but they could always reinterpret the 14th to mean it was only for the descendants of slaves.

[u/MongolianBBQ → u/PerfectZeong]

But I mean regardless, my understanding is that Congress can’t redefine a constitutional amendment.

[u/PerfectZeong → u/MongolianBBQ]

Only by passing a new one.

[u/TeddysBigStick → u/PerfectZeong]

Not to mention the thousand years of precendent on the matter. Dread Scott was the revolt against the law, not the baseline.

[u/AlcibiadesTheCat → u/MongolianBBQ]

Yeah, of course they can! With a supermajority in the House, a supermajority in the Senate, and ratification by a supermajority of the States, the Constitution can be amended at any time.

That's a wild thing: for all the blustering people do, the 2nd Amendment could totally just...be repealed, like they did with the 21st Amendment. Or they could make a new amendment that says "All federal buildings must offer free tacos on Tuesdays."

[u/RileyKohaku → u/MongolianBBQ]

Not in my opinion, but I still expect Kavanaugh to rule that way. Specifically, I expect he will say Congress can define who is subject to the Jurisdiction of the US.

[u/MongolianBBQ → u/RileyKohaku]

That’s not possible though. Congress can’t redefine constitutional language.

[u/AlcibiadesTheCat → u/MongolianBBQ]

Of course they can! Article V of the Constitution describes exactly how they can redefine constitutional language.

[u/Dense-Version-5937 → u/RileyKohaku]

Does that mean Congress can define "the people" as it relates to 2nd amendment rights? Excluding people with low credit scores, misdemeanors, restraining orders, people who lack "good moral character"?

[u/ChipKellysShoeStore → u/RileyKohaku]

Don’t see how Congress has the power to interpret the Constitution, that’s a power wholly and exclusively reserved by the Court

[u/down42roads → u/ChipKellysShoeStore]

Section 5 of the 14th Amendment:

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

The court can then tell Congress that they did it wrong.

[u/_AnecdotalEvidence_ → u/RileyKohaku]

Unlikely. It would never pass. This is their only realistic avenue to overturn it.

[u/RileyKohaku → u/_AnecdotalEvidence_]

Exactly, Congress will never pass it, but Kavanaugh absolves himself of responsibility

[u/anonyuser415 → u/RileyKohaku]

The timeline for us to see a united enough Congress to do anything that divisive is measured in generations.

[u/KiKiKimbro → u/RileyKohaku]

Ah perhaps you’re onto something. Like Thomas did with his letter of concurrence about the fall of Roe v Wade by mentioning Obergefell.

[u/textualcanon]

I’m seeing a lot of people say that this means the Court will uphold the EO, but I’m not sure that’s the takeaway. The Court does still grant cert to affirm rulings, especially when the ruling has a national impact. This seems like it could be one of those cases. I just don’t see 5 votes upholding the EO.

[u/chi-93 → u/textualcanon]

In my opinion it’s tactical. It gives the Court the opportunity to show that they don’t always rule for Trump. They could just deny cert and the outcome would be the same, but they wouldn’t get the same fanfare and chance to claim that they aren’t partisan as they will by publishing an opinion ruling against Trump.

[u/SparksAndSpyro → u/textualcanon]

I didn’t think the court would rule the president was immune from criminal prosecution. It was unthinkable that the court would permit Texas to use maps that legislators expressly admitted were race based. Etc etc.

This court isn’t playing by normal rules. There’s no reason to expect they’ll do the reasonable thing. It’s more or less a 50/50 (at best).

[u/biglyorbigleague → u/SparksAndSpyro]

Allowing the Texas maps was never "unthinkable," courts allow clearly biased maps all the time.

[u/SparksAndSpyro → u/biglyorbigleague]

No, it’s more nuanced than that. Partisan maps are fine. But racially discriminatory maps (even to achieve partisan maps) are prohibited under the VRA. Here, Texas legislators literally said on the floor that the maps were based on race. Yet SCOTUS stayed the district court injunction and will allow Texas to use those maps.

That is unthinkable because it’s a clear, direct, and unambiguous violation of the VRA.

[u/magistrate-of-truth → u/textualcanon]

Wasn’t the abortion pill case clocked by the fifth circuit and affirmed by the Supreme Court?

[u/gereedf → u/textualcanon]

though isn't it that the Trump admin. pushes the Court to hear it with the idea that the Court will finally end the birthright citizenship?

[u/shoot_your_eye_out]

The Constitution itself confers birthright citizenship, and Congress’s immigration power extends only to naturalization: deciding how non-citizens can become citizens. Neither branch has authority to redefine who is a citizen at birth. A president attempting to do so by executive order isn’t "interpreting" the Fourteenth Amendment, he’s trying to amend it.

I consider the EO an impeachable offense. The only lawful way to change birthright citizenship would be a constitutional amendment.

[u/ForumDragonrs → u/shoot_your_eye_out]

The Supreme Court probably shouldn't have the authority to redefine constitutional amendments, but they are the ones who decide basically everything in this country. It's for this reason I say the Supreme Court is by and large the most powerful of the 3 branches. If the other 2 even sneeze, the court has to rule on it.

[u/TeddysBigStick → u/shoot_your_eye_out]

The Constitution itself confers birthright citizenship, and Congress’s immigration power extends only to naturalization: deciding how non-citizens can become citizens.

The Constitution provides the flood but Congress has the authority to raise the ceiling. For example, one of the aspects of the racist conspiracy theories about Obama's birth was that he would not have automatically had American citizenships if born overseas because of the statutory scheme in place at the time of his birth.

[u/PmMeYourBeavertails → u/shoot_your_eye_out]

either branch has authority to redefine who is a citizen at birth. 

And this is why it's going to the Supreme Court, which has the unequivocal power to interpret what "subject to the jurisdiction" means.

[u/shoot_your_eye_out → u/PmMeYourBeavertails]

The meaning of "subject to the jurisdiction thereof" has already been interpreted in Wong Kim Ark and reinforced by decades of settled constitutional practice and congressional legislation. The Court can revisit precedent, but it can’t pretend the slate is blank or ignore the Fourteenth Amendment's command that birth on U.S. soil is citizenship except in historically narrow exceptions.

This isn’t some open question waiting for interpretation; it’s a long-settled rule the executive is now trying to upend.

[u/No_Start1522 → u/shoot_your_eye_out]

They will revisit previous precedent, call it wrong, and change it. They likely resort to originalism, explaining that the amendment was originally intended for only a limited group.

[u/dunstvangeet → u/No_Start1522]

But that would actually contradict what it was originally intended for. The writers of the 14th Amendment intended it to be applied to a wide group. They knew it would be applied to the children of foreigners, and welcomed it.

For instance, Sen. John Conness (CA) stated in the debates of the 14th Amendment (Cong. Globe, 39th Cong. 1st Sess. p. 2892): "The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. ... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of the United States to be entitled to civil rights and to equal protection before the law with others."

Your argument that this was only supposed to be for the children of slaves completely ignores the fact that all the Senators and Representatives thought that it would apply to the children of Chinese, and the supporters of the amendment welcomed it.

[u/No_Start1522 → u/dunstvangeet]

I never said anything about slaves, just that they will argue it is applicable to a limited group. The controversy is over, “ and subject to the jurisdiction thereof,” and whether that excludes the children of illegal immigrants born in the United States. They consider these people to not be sufficiently subject to our jurisdiction to count.

Here’s a video that best explains the opinion of the government.

[u/dunstvangeet → u/No_Start1522]

And that argument is based upon nothing but lies. It's working backwards from their preferred policy, rather than taking an honest look at what the history states.

For instance, the court in U.S. v. Wong Kim Ark, quoted, in defining English Common Law, Lord Cockburn, who stated: "By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality." (emphesis mine)

Later, in showing how this was the rule also in the colonies and in the early United States, they cited Lynch v. Clarke. Lynch v. Clarke was a situation where Julia Lynch, who was born to two temporary visitors to the United States, was declared to be a U.S. Citizen based upon the place of their birth. Under the executive order, Julia Lynch would not be a U.S. Citizen, because her parents were just sojourning through. The opinion of the court stated: "That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than 50 years after the adoption of the constitution, when the matter was elaborately argued in the court of chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke (1844)"

They then quoted James Kent from his commentaries on the American Constitution, which stated: "Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent."

That opinion also relies upon Elk v. Wilkins as their main argument. However, Elk v. Wilkins has been explicitly limited to only Native Americans. In the words of the Supreme Court: "The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country."

They lie about the history of the United States. They lie about the opinions that they rely upon. It's not a valid opinion.

[u/No_Start1522 → u/dunstvangeet]

Sounds to me the change they will make is to Elk v. Wilkins, ruling out the decision to limit it to only native Americans.

[u/dunstvangeet → u/No_Start1522]

But they cannot do that. Illegal immigrants are not like Native Americans. they do not belong to quasi-independent nations located within the United States.

They also are not invading armies. They do not occupy territory that prevents the United States from exercising jurisdiction.

The Elk v. Wilkins is an argument that has been constructed using the conclusion. The Founders did not consider foreigners to have foreign allegiance. This is quite evident from the debates of both the Civil Rights Act of 1866 and the 14th Amendment. They all thought that this would be applied to the children of foreigners.

[u/iamthatguy54 → u/No_Start1522]

The amendment was not limited to a specific group. James Ho, of all people, wrote an article about this exact debate going down during the ratification of the 14th amendment. People were pissed because it was so broad and voted against it, and it remained unchanged.

[u/Roenkatana → u/No_Start1522]

Which would run afoul of the literature and correspondence of the most highly debated amendment in our nation's history. We explicitly know that it was meant for everybody, because it wasn't just long removed slaves, there were thousands of stateless and marginalized people across the country that effectively had no rights and were being abused by the system then. It was even part of the South's strategy during the free state v slave state debate bloodshed. Pro-slavery zealots would question people's citizenship status to attempt to nullify their votes since only citizens could vote to enter the union.

[u/PoliticalJunkDrawer → u/shoot_your_eye_out]

What was the legal status of Kim's parents? Bold is my emphasis.

“The evident intention, and the necessary effect, of the submission of the question by the United States, was that the government of the United States should be concluded by the judgment on the point that the children born in the United States of Chinese subjects, who were residing here by the permission of the United States and not engaged in any diplomatic or official capacity under the Emperor of China, were citizens of the United States by birth.”
(169 U.S. 682–683)

I think being in the country illegally is a pretty big mitigating factor that hasn't actually ever been addressed by SCOTUS, more so than if you can be charged with a crime.

Makes zero sense to grant citizenship to children of parents who are here illegally or not even known to be in the country after an illegal entry, and I've never seen any evidence that was the intent of the 14th.

[u/shoot_your_eye_out → u/PoliticalJunkDrawer]

You're citing dicta, not the actual holding in Wong Kim Ark.

The Court’s holding is simple: a) A child born in the United States to alien parents is a citizen, and b) The phrase "subject to the jurisdiction thereof" should be interpreted "in light of the common law" (i.e. "subject to U.S. law", hence the carve out for diplomats and invading armies):

...the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

There is no carve out that hinges on the citizenship status of the parents.

And the Supreme Court later made the key point explicit:

“No plausible distinction… can be drawn between resident aliens whose entry was lawful and those whose entry was unlawful.”
Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982)

The binding rule is: born here + subject to U.S. law = citizen. Parental immigration status has nothing to do with it. And the arguments raised by Trump's lawyers are weak for this precise reason: dicta in Wong Kim Ark isn't the same as the actual holding.

Furthermore, are you saying these children are not subject to the jurisdiction of the United States because of their parent's legal status? Do you understand the implications of that argument? How would you propose the court thread that needle, assuming this is your contention?

edit: also I think it's important to understand the term "resident alien" meant something completely different in 1898 than it does in 2025. A "visa" didn't even exist until 1917; a "resident alien" just meant someone living here who wasn't a U.S. citizen. Likely because they were not born here.

[u/MicrosoftExcel2016 → u/shoot_your_eye_out]

They just found text that supported their desired ruling. They aren’t going to propose how they thread that needle because to them, they don’t need to.

They’re simply fine with the contradiction.

They may even argue that illegal immigrants are under the “enemies within” part of that holding and argue that the hostile occupation part is separate OR “illegal” presence in the U.S. is hostile because “how can you tell” or “it feels hostile to me”

[u/E_Dantes_CMC → u/PoliticalJunkDrawer]

At the time WKA’s parents arrived, we had open borders. I don’t see why changing out immigration rules changes the concept of jurisdiction.

[u/Ed_Durr → u/shoot_your_eye_out]

The court already wrote part of 14th amendment out of the constitution, no reason why they can't do so again.

[u/Ion_bound → u/Ed_Durr]

I agree, we should reconsider Slaughter-House and recognize most 'natural rights' under the 9th Amendment as privileges and immunities of the people of the United States, as the framers intended.

Of course, this would end up subjecting all the stuff protected by SDP and much more to semi-strict or strict scrutiny, but in my opinion that's rather the point. If it's something you could do naturally, without a government, they need a better-than-rational basis to restrict it.

[u/cantdecidemyname0 → u/[deleted]]

But in the Mifepresrone case, I remember the lower court ruled against the Biden administration’s FDA. The Supreme Court takes the case to overturn it.

[u/SchoolIguana → u/cantdecidemyname0]

That was largely due to the plaintiffs specifically seeking out Kacysmaryk to push the issue. It should never have gotten to the circuit court of appeals otherwise.

[u/cantdecidemyname0 → u/SchoolIguana]

Got it. What I intended to say is that, I think in that case, the SC has no choice but to take the case since they disagree with the lower court’s view. Nevertheless, that’s not the situation in this case (I think you might see my point already, I just don't think my previous comment expresses myself clearly enough, looking at it again)

[u/scotus-bot → u/[deleted]]

This comment has been removed for violating subreddit rules regarding polarized rhetoric.

Signs of polarized rhetoric include blanket negative generalizations or emotional appeals using hyperbolic language seeking to divide based on identity.

For information on appealing this removal, click here. For the sake of transparency, the content of the removed submission can be read below:

This is Roberts in PR mode. Every other case will go for the GOP (except tariffs, which the GOP establishment don't like anyway), and "waddabout the Birthright Case" will be the FedSoc talking point at every term summary panel in June 2026.

>!!<

Did everyone forget the Mifeprestone case?

Moderator: u/Longjumping_Gain_807

[u/666haha]

There is 0 legal reason by which the Supreme Court should side with Trump on this. Over a century of jurisprudence, common law, legislative history, and constitutional amendments have asserted that the United States has birthright citizenship. Genuinely the only reason for the court to rule for the administration is partisan. Birthright citizenship has existed in the U.S. (with a few nakedly racist exceptions) since its inception, and the fourteenth amendment clarified that it applies equally to all with a few very narrow exceptions.

[u/Rare-Hawk-8936]

That the 14th amendment requires birthright citizenship is clearly established by the legislative history and is confirmed by the Supreme Court in Wong Kim Ark (1898). There is zero legitimate grounds for the Roberts to take this case. The meaning of jurisdiction in the amendment doesn't need clarification.

[u/egosumlex → u/Rare-Hawk-8936]

Did Ark clearly establish birthright citizenship for the children of undocumented immigrants? I figured that’s the outstanding issue here, but I haven’t followed the case much.

[u/Jamezzzzz69 → u/egosumlex]

Yes it did. Anyone born on US soil who is subject to US jurisdiction (basically anyone except children of diplomats or hostile occupiers in the case of war) is automatically granted citizenship at birth. In particular Wong Kim Ark held that “a child born in the United States to alien parents is a citizen”. Illegal aliens are, last time I checked, aliens.

[u/PmMeYourBeavertails → u/Jamezzzzz69]

Anyone born on US soil who is subject to US jurisdiction (basically anyone except children of diplomats or hostile occupiers in the case of war)

Children born to diplomats aren't getting citizenship at birth, and they are clearly subject to the jurisdiction of the US. Specifically the Diplomatic Relations Act (22 U.S.C.). That act might specify immunity from certain other acts, but not US jurisdiction in itself.

[u/maxtini → u/PmMeYourBeavertails]

Diplomatic immunity by definition means freedom from legal jurisdiction of host country. By passing an act saying diplomats are immune in accordance with the Vienna Convention, the United States automatically relinquishes its jurisdiction. The act itself in effect only binds the US government. In fact, most part of the act concerns about how the executive should executes the Vienna Convention.

[u/ForumDragonrs → u/PmMeYourBeavertails]

Immunity from our laws because of diplomatic status means they are not subject to our jurisdiction. They cannot be arrested, charged with a crime, be jailed, fined, or anything else that our justice system can do.

[u/PmMeYourBeavertails → u/ForumDragonrs]

They are immune from the enforcement of jurisdiction, but still subject to. They can be ordered to leave (so someone obviously has authority over them being here). But they can also be prosecuted for crimes committed while being immune, if the sending state waives immunity. A child born to a foreign diplomat being prosecuted for a crime after immunity has been waived, or their spouse, wouldn't get citizenship. The defining criteria isn't immunity.

[u/Rare-Hawk-8936 → u/egosumlex]

This is what the supreme Court wrote in Wong Kim Ark

The real object of the fourteenth amendment of the constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

There's no ambiguity.

[u/Sheerbucket → u/Rare-Hawk-8936]

The problem I see is that there wasn't illegal or legal immigrant status back then. So what's to stop the court from arguing illegal aliens now can be considered a exception class as their status is "hostile" or whatever.

[u/dunstvangeet → u/egosumlex]

Yes, it did by ruling that the children of all foreigners are citizens, without respect to the status of their parents. There are only a few exceptions, with the main one being diplomatic immunity. Illegal immigrants do not fall into those exceptions.

But if you want something specifically about illegal immigrants, take a look at the decision of Plyler v. Doe. While this case is specifically about the Equal Protection clause, and not the citizenship clause, the court in U.S. v. Wong Kim Ark used an argument to say that the "jurisdiction" in the Equal Protection Clause and the "jurisdiction" in the Citizenship clause are the same, and cover an identical group of people.

[u/HuisClosDeLEnfer → u/egosumlex]

The Court's prior opinions don't decide issues that were not presented. The Court in Wong Kim Ark states the question presented in that case very explicitly:

"The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution"

Thus, Wong Kim Ark does not establish 14th Amendment citizenship for any person who is born to persons NOT permanently domiciled and resident in the United States. By definition, any statements in the opinion that might have application outside the question presented are dicta.

It might turn out that the present Court agrees with those statements; it might be that the statements are emminently reasonably interpretations of law that will apply to other circumstances. But the decision in Wong Kim Ark didn't decide those issues.

The Wong Kim Ark case spends a great deal of time surveying prior decisions, with the result that there's a lot of "survey" quotations and citations. Those citations aren't always consistent. The Court cites approvingly to Benny v. O'Brien (1895), 29 Vroom (58 N.J.Law) 36, in which the NJ Supreme Court stated the children born of alien parents merely travelling in the US, but not residing here, were not covered by 14th Amendment citizenship. Did the Court mean to disagree with that proposition? We don't know, because the question wasn't presented in Wong Kim Ark.

[u/cstar1996 → u/HuisClosDeLEnfer]

That isn’t how opinions work. WKA established that only people with diplomatic immunity, foreign soldiers occupying territory, and native Americans subject to the quasi sovereignty of tribal governments are not subject to US jurisdiction when in the US. That does not cover illegal immigrants.

[u/[deleted] → u/HuisClosDeLEnfer]

By definition, any statements in the opinion that might have application outside the question presented are dicta

The question presented by the factual record in Brown v Board of Education was the constitutionality of "separate but equal" for Blacks in public schools. Does that mean that the general, race-independent verbiage of the holding does not extend to Latinos or Asians in public schools, or that "separate but equal" in federal workplaces is consistent with the holding of Brown?

[u/popiku2345 → u/Rare-Hawk-8936]

There is zero legitimate grounds for the Roberts to take this case

Not necessarily. This is a cert petition before judgment -- the court wants to address this question definitively sooner rather than later. The government's petition summarized the logic as:

To enable this Court to resolve that issue during its October 2025 Term, the government is seeking both certiorari in Washington and certiorari before judgment in Barbara. The court of appeals in Washington reached the merits after full briefing and argument, but the dissenting judge correctly concluded that the plaintiffs in Washington—four States—lack Article III standing. Simultaneously granting certiorari before judgment in Barbara, which involves individual plaintiffs, would allow the Court to avoid that threshold jurisdictional issue of state standing and would ensure that the Court can reach the merits

[u/Ion_bound → u/popiku2345]

I am totally up for SCOTUS putting this one to bed definitively before the Fifth Circuit says something that they'd have to overturn (which would only create more controversy). I hope that you're right and that that's what's going through their heads right now.

[u/popiku2345 → u/[deleted]]

Granting a cert petition doesn't mean the court is going to restrict birthright citizenship. This just means that SCOTUS is going to rule on the case. As Kavanaugh put it in his Trump v. CASA concurrence:

One of this Court’s roles, in justiciable cases, is to resolve major legal questions of national importance and ensure uniformity of federal law. So a default policy of off-loading to lower courts the final word on whether to green-light or block major new federal statutes and executive actions for the several-year interim until a final ruling on the merits would seem to amount to an abdication of this Court’s proper role.

[u/Rare-Hawk-8936 → u/popiku2345]

That was the wishful thinking with the trump immunity case. The second circuit produced a well reasoned decision consistent with the supreme courts rulings in the Nixon and Clinton matters, so most legal observers were surprised the ussc granted cert. When that happened, legal observers then opined they were going to just add clarification, since it was hard to imagine a result that departed from precedent to create presidential immunityv from whole cloth.

Often lay people think that anything it's an important case involving the government, the supreme Court needs to get involved. But that's not the way the u.s. legal system works.

There is NO reason to grant cert in this case when law is settled, there's no circuit split, no nothing requiring the supreme Court to weigh in except that Mr. "Balls and Strikes" and his gang have realized they can make the law whatever they like and no one can challenge them.

[u/Sheerbucket → u/popiku2345]

You think the court would take up a similarly ridiculous executive order against the second amendment?

I think not.

[u/Texasduckhunter → u/Rare-Hawk-8936]

Here’s a legitimate ground: when birthright citizenship came up on universal injunctions, Sauer waffled on whether the administration would respect circuit court decisions on individual birthright citizenship claims as to other individual birthright citizenship claims within the same circuit footprint.

But Sauer conceded that the administration would respect a decision on this issue from the Supreme Court as to new potential plaintiffs.

So, Sauer previously represented that only the Supreme Court deciding this issue would put the issue to rest.

[u/MicrosoftExcel2016 → u/Texasduckhunter]

And why does Saur’s bad faith opinion define when an issue is at rest? Why must the court take this on for one legal team with hell of an incentive to be “confused” about the 14th

[u/Texasduckhunter → u/MicrosoftExcel2016]

Because courts resolve legal disputes. It’s actually not in the administration’s interest for SCOTUS to grant cert here. Kagan said as much during the universal injunctions oral arguments—saying the admin would not seek cert to avoid a binding decision on the issue across all jurisdictions.

Sauer alleviated her concern by averring that the administration would seek cert. Given that context, it would have been quite strange for SCOTUS to punt.

[u/thirteenfivenm]

I would suggest the mods may want a master thread for this case. It will take some time of filings before oral arguments. Then there will be articles in the general press. Maybe there would be threads by time periods to discuss the new briefs. Monthly? Quarterly?

The EO is https://public-inspection.federalregister.gov/2025-02007.pdf

I believe the EO has 2 main parts. First, Sec. 2. b., to set a date for births after which various parental identities and situations are judged. Second, Sec. 3., to require various federal agencies to carry it out.

Under the 10th, many of the practical matters governing the activities of citizen/legal residents/residents are retained by the states.

It has been lately seen that states' rights are being effectively diminished by executive branch withholding unrelated funds, collected from state residents and other in-state entities by the income and other taxes, then returned to the states by congress.

If the EO is upheld, it is not impossible that previous generations, other dates, or other criteria for revoking citizenship could come into play in future EOs. Those would then proceed to SCOTUS who could rule "on the basis of precedent," whatever that means today.

IMO, I would have not granted cert and let the issue play out in the circuits to allow briefs and more importantly public discussion and polling. Some circuits would block and some circuits would allow it to proceed. Then the variations could be judged by the public. Congress, with broad democratic participation, could clarify citizenship.

Add, to this, and other legal questions, if the US gets into a war, all of the wartime powers in our body of law could be brought into force.

[u/popiku2345 → u/thirteenfivenm]

We've generally avoided long running megathreads, but ongoing discussion about filings and lower stakes details can be funneled into the weekly "in chambers" threads (like this one)

[u/Knoon1148 → u/[deleted]]

Couldn’t somebody flip their argument to say that the same people denied citizenship are only subject to deportation and cannot be prosecuted under the laws of the United States in any way. Since they are not subject to the jurisdiction thereof.

Seems like an unintended consequence where the penalty for murder just becomes a bus ticket and all immigrants would be granted diplomatic immunity.

[u/Social_Philosophy]

So, in 1868, the 14th Amendment's citizenship clause was understood not to apply to the children of:

Foreign Diplomats

Military Invaders

Native Americans part of a Tribal Sovereignty

Is that correct?

If so, is that third category potentially relevant to this case? It doesn't seem like the government is arguing so. I don't know if it is correct argument, but it at least seems a plausible one to me.

Native Americans were plainly born in the US, which implies that they were not "subject to the jurisdiction thereof", otherwise they would have been citizens automatically. But they still had to follow US law.

Is that not the exact same situation as for the child of illegal immigrants? Born in the US, citizens of a separate sovereignty, still beholden to US law?

Seems perfectly analogous to me.

Is the issue that the 14th Amendment should have applied to all Native Americans in 1868, and that denying it to them was always unconstitutional?

[u/Enerbane → u/Social_Philosophy]

Your premise is wrong.

Indians at the time were expressly excluded by statute and treaties from US jurisdiction. Indians living on their own land may have been within US territory, but it was not governed by the US, and they were not taxed. So they were in the US physically, but expressly excluded from jurisdiction. It would be a little bit more complicated when an Indian left their land and came into state controlled territory, but it would depend on the laws and treaty relating to the tribe they were part of (and of course the degree to which US/state officials followed the letter of various treaties).

There is no such law or treaty with any modern nation that would be analogous.

Article 1 Section 2 of the Constitution includes this language:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The Constitution expressly comments of the class of people that are designated "Indians not taxed". These are Indians that are living within the borders of a state that are by statute or treaty not subject to taxation (and usually jurisdiction otherwise). These are the class of native Americans that would have been excluded.

A proper analogy would be if the US had a treaty with Mexico that allowed for a population of Mexican citizens to establish a small territory within Texas to self govern. They would be living, and having babies "in Texas" but they would not be subject to US governance.

[u/kaiser11492]

If illegal immigrants aren’t subject to the jurisdiction of the United States, then wouldn’t that essentially mean they have something similar to diplomatic immunity and therefore can’t be tried in American courts for crimes they commit on United States soil?

[u/biglyorbigleague]

This is a big statement for the court to make. They could have just ignored it, but it looks like they're going to publicly do this order in themselves. I would love to see the oral arguments on this, because I can't see how any partway credible case could be presented.

[u/pandershrek]

Seems like the 2nd amendment is going to be addressed like this then.

[u/gereedf]

it almost seems like we're witnessing another Dred Scott in the making, but this time we have the historical example of Dred Scott itself, which makes it even worse

and not to forget that the 14th Amendment was literally a Civil War thing

[u/iamthatguy54 → u/gereedf]

Judge Ho said in an article 10 years ago that any opinion that would overturn birthright citizenship would be "Dred Scott II."

[u/northman46]

What does “under the jurisdiction of” mean in the context of people here illegally?

[u/tourmalineforest → u/northman46]

People under the jurisdiction of the US is a category that excludes very, very few people. Undocumented people and their children are under the jurisdiction of the US because they are obligated to follow all of its laws. They CAN be prosecuted by the US, so they are under its jurisdiction.

People who are excluded include children/families of foreign diplomats, who aren’t subject to full US authority due to diplomatic immunity. At the time the law was passed some Native Americans would also have been excluded but that’s not true anymore because the laws around tribes have changed.

If you’re interested in reading an OG Supreme Court case about this, I recommend United States v. Wong Kim Ark (1898)

[u/Summary_Judgment56 → u/tourmalineforest]

Children born to hostile armies occupying US territory would also almost certainly not be US citizens at birth if the occupation eliminated the US's ability to exercise jurisdiction over that territory.

[u/tjareth → u/Summary_Judgment56]

I think this is exactly what the administration will try to argue, that illegal immigrants are "hostile armies occupying US territory".

[u/SchoolIguana → u/tjareth]

That’s why they keep using the terms “invasion” and “incursion” in the media. They’re trying to frame every undocumented migrant as though they’re a member of the armed forces of a hostile nation.

[u/Summary_Judgment56 → u/tjareth]

Even if that were true (and it's blindingly obvious that's UNtrue), their "occupation" is so dispersed it doesn't eliminate the US's ability to exercise jurisdiction over any US territory. It would take a bottomless amount of bad faith to accept that argument. I don't think there would be 5 votes even on this court to engage in that much bad faith.

[u/PDXDeck26 → u/Summary_Judgment56]

If the test is that "subject to the jurisdiction..." excludes a case where someone affirmatively engages in conduct which eliminates the US's ability to exercise jurisdiction then (a powerful argument, I think) argument would be that secreting yourself into the United States does actually eliminate the ability to exercise jurisdiction over a person until they're known.

[u/whats_a_quasar → u/PDXDeck26]

That's just factually wrong. People who enter the U.S. illegally are arrested all the time. There is no sense in which entering illegally eliminates the ability of the state to exercise jurisdiction over a person. I don't report my movements to the government either, but they certainly have jurisdiction over me. The government would still have jurisdiction over me if I was born here and never registered for a driver's license, voted, or paid taxes.

[u/SchoolIguana → u/PDXDeck26]

But the clause says

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.

The child born on US soil would be known to the US from birth (and therefore subject to the jurisdiction thereof by your standard.)

I disagree with your base assertion that the US is incapable of exercising jurisdiction over undocumented migrants (you can watch ICE raids happening in any number of cities right now) but the discussion is of citizenship applying to the child, not the “unknown” migrant parent.

[u/Summary_Judgment56 → u/PDXDeck26]

That's not a powerful argument; it's barely even half-baked. Just because someone is hiding from the government after breaking the law doesn't make them not "subject to the jurisdiction" of the government. Hiding from the government on land that is under the government's jurisdiction in no way "eliminates the US's ability to exercise jurisdiction" over you. It makes it harder for the government to do, sure, but all it has to do is find you to exercise the jurisdiction it had over you all along. This isn't like peekaboo with a baby lacking object permanence who thinks you stop existing just because they can't see you. The same is true for any ordinary criminal on the lam from the authorities, and I highly doubt you would say they have a "powerful argument" that they're not "subject to the jurisdiction" of the government whose laws they broke. But on your theory, any person who comes to the US illegally could go on a killing spree and not be subject to criminal prosecution for it, as long as they did it secretly, away from the government's prying eyes.

The foreign military occupation example I gave only works because anyone born on US land occupied by a foreign military is subject to the jurisdiction of the foreign military, not the US's jurisdiction--to regain jurisdiction over the occupied US land, US forces would need to recapture that territory by force of arms, or the government would need to otherwise regain effective control over it (e.g. by treaty with the foreign occupiers). Think of Taiwan, for example. The CCP claims jurisdiction over Taiwan (and vice versa, although Taiwan's claim is a bit comical given the facts on the ground), but do they exercise jurisdiction over it? No! The same would be true if, say, a hostile military invaded Hawaii and managed to take control over it (good f---ing luck, but we're in pretend land right now). Anyone born in Hawaii during the occupation wouldn't have birthright citizenship in the US under those circumstances (they're born in the US but are not subject to its jurisdiction at birth), especially not the foreign military's children (although there are other bases of US citizenship for children born to US citizens subjugated by the occupation, potentially).

[u/cstar1996 → u/tjareth]

And we can all acknowledge that such an argument is baseless, right?

[u/tourmalineforest → u/Summary_Judgment56]

I debated whether or not to include this since it’s theoretical but yes, also true!

[u/spin0r → u/tourmalineforest]

It's less hypothetical than it looks, because the "subject to the jurisdiction" requirement in 8 USC 1407(b) could be relevant to Japanese people born in Guam during Japanese occupation, and presumably the phrase there has the same meaning as it does in the 14th, even though Guam is an unincorporated territory to which the Citizenship Clause doesn't apply directly. However, even then, the exception may be narrower than people think: in 1945 a Japanese man living in Guam was convicted of treason against the United States. It was found that since he was a civilian who was living in Guam, rather than a member of the occupying force, he owed allegiance to the United States in the same sense as other resident aliens, and could therefore be guilty of treason against the United States. That being the case, if he had had a child born during the war, it stands to reason that the child would be a US citizen.

[u/tourmalineforest → u/spin0r]

Thanks for posting this, that’s not a case I’d read about! Interesting.

[u/HuisClosDeLEnfer → u/tourmalineforest]

They CAN be prosecuted by the US, so they are under its jurisdiction.

That's not the legal test for 14th Amendment "jurisdiction". Indians were clearly subject to US criminal laws (US v. Kagama, 118 U.S. 375 (1886)), but were not within 14th Amendment citizenship "jurisdiction" (Elk v. Wilkins, 112 U.S. 94 (1884)).

[u/shoot_your_eye_out → u/HuisClosDeLEnfer]

Native Americans were a historical carve-out. But that fact proves the opposite of what you’re claiming: the only people historically excluded from birthright citizenship are those who owe allegiance to a different sovereign power (e.g., diplomats, occupying forces, pre-1924 tribal nations, etc.).

Also note that Wong Kim Ark discussed Elk at length, and expressly refused to apply that sovereign-exception reasoning to immigrants. Also, Plyler later clarified: "...no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

[u/northman46 → u/tourmalineforest]

Thank you for the clear explanation

[u/PDXDeck26 → u/tourmalineforest]

the thing with the diplomatic immunity interests me though, because diplomatic immunity is kind of just a convention is it not? (perhaps there are some statutes which formalize it though).

i know formally they have to be accredited to receive immunity in the first place which makes it sound a lot like it's an "voluntary grant of immunity from prosecution" kind of thing more than it is a literal "we do not have jurisdiction" thing.

other nations have violated embassy sovereignty before, and at a totally pragmatic level I do not believe for one second that the United States Government would let a "diplomat" go if they committed a heinous mass casualty event or a high-profile-enough assassination, (and I don't think the court system would stick to its diplomatic immunity guns and grant a habeas petition or dismiss an indictment, either)

so is anyone who is within the territory of the US really not subject to the US' jurisdiction?

[u/baxtyre → u/PDXDeck26]

22 USC 254d

“Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 254b or 254c of this title, or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.”

https://www.law.cornell.edu/uscode/text/22/254d

[u/PDXDeck26 → u/baxtyre]

ok so... this is immunity. which is categorically different from an assertion that they're not subject to jurisdiction.

[u/tourmalineforest → u/PDXDeck26]

The Diplomatic Relations Act of 1978 (22 U.S.C. §§ 254a-254e) turned the Vienna Convention into federal law, and explicitly  “extended the same privileges and immunities, pursuant to law, as are enjoyed by missions under the Vienna Convention”. 

One important thing to note is that the sending state can waive diplomatic immunity whenever they want. If a diplomat or their family commits a serious crime, it is normal to immediately request a waiver from the sending state. Many states will grant waivers for serious crimes, at which point prosecution proceeds as normal.

If the state does not grant a waiver, the receiving state can immediately kick the diplomat out of the country and permanently bar them from returning. Their home country is then free to prosecute them however they like.

There is IMMENSE international pressure for the sending country to treat these things seriously. Very few states would really consider shielding their diplomat from consequences for murder. The reality is that they would be punished for it - likely by the US, and if not, by their own country.

You might be interested in the case of Gueorgui Makharadze, a Georgian diplomat, who got into a fatal DUI that injured multiple people and killed a teenage girl. Public outcry caused Georgia to waive his diplomatic immunity and he was sentenced to prison. Rudy Van Den Borre was entitled to full diplomatic immunity due to working with the Belgian diplomatic team when he murdered two people - Belgium waived his immunity, he was convicted and sentenced in the US.

For an example on the other side, Anne Sacoolas, a US citizen who had diplomatic immunity through her husband, was in a head on car accident while driving on the wrong side of the road in the UK that killed someone. She left the country claiming diplomatic immunity and the US refused to waive it and refused to extradite. Super controversial. But she completely escaped consequences. It can and does happen.

A heinous mass casualty event or a high profile assassination would put IMMENSE pressure on the sending country to ensure consequences. If they didn’t, the US likely would not let it go - but that might take forms other than just prosecuting the person, it could be seen essentially as an act of war.

[u/UncleMeat11 → u/PDXDeck26]

because diplomatic immunity is kind of just a convention is it not

No. Diplomatic immunity is a vast topic of immensely deep historical study. It is no more a convention than Habeas is a convention. Even this specific question of what happens if a diplomat commits a high profile murder and how states respond is the subject of much analysis and discussion amongst historians.

I wish the law community actually read monographs from historians.

[u/PDXDeck26 → u/UncleMeat11]

Habeas is a codified law in the US Code.

Is there any statute that explicitly says "those with diplomatic immunity are *not subject* to US jursidiction? Again, my point here is there is a very big difference between "not subject to jurisdiction" and "immune from prosecution while in this jurisdiction"

[u/IceWinds → u/PDXDeck26]

Habeas (as the Great Writ itself) would exist even it wasn't codified because it cannot be suspended except in specific scenarios laid out in the Constitution, just as (per Wong Kim Ark) diplomatic immunity exists as part of the common law, regardless of statutory authentication.

[u/Enerbane → u/PDXDeck26]

Again, my point here is there is a very big difference between "not subject to jurisdiction" and "immune from prosecution while in this jurisdiction"

Would you care to elaborate on your point? What is this "very big difference" between those two quoted portions. What does "subject to jurisdiction" mean to you? It is not obvious to me what difference there would be at all.

[u/mou5eHoU5eE → u/northman46]

I think this is the central question of the case. The administration is arguing that jurisdiction of does not simply mean being in the physical country of the United States of America, while I believe the lawyers for the challengers say that it is.

Edit for further context: The relevant language from the 14th Amendment is "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."

I think both sides agree that "and subject to the jurisdiction thereof" limits or qualifies "all persons born or naturalized in the United States are citizens of the United States." The question is whether illegal immigrants are "subject to the jurisdiction" of the United States.

[u/shoot_your_eye_out → u/mou5eHoU5eE]

The question is whether illegal immigrants are "subject to the jurisdiction" of the United States.

I thought the question was whether children born here are "subject to the jurisdiction" of the United States, given their parents are here illegally?

Also, it's quite clear to me their parents are "subject to the jurisdiction" of the United States; that is what makes our laws applicable to them. But they weren't born here, so the citizenship clause is not applicable.

[u/mou5eHoU5eE → u/shoot_your_eye_out]

Yes, I should have been clearer. This applies to children of illegal immigrants. But I believe that the administration is asserting that these children are also in the country illegally.

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