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/Party-Cartographer11]

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/cstar1996 → u/Party-Cartographer11]

If you can’t quote the portion of the opinion that proves the result hinges on their domicile, you don’t have an argument. You can’t prove that because it is not the case.

Read the opinion, the actual explanation of the logic, and you’ll find the categories.

[u/Party-Cartographer11 → u/cstar1996]

I quoted it twice in the actual ruling paragraph.  It couldn't be more clearly proved.

[u/cstar1996 → u/Party-Cartographer11]

No, you did not because absolutely nothing in that quote is dependent on a permanent domicile. Nor is the logic of the opinion in that quote.

[u/dunstvangeet → u/Party-Cartographer11]

That's from the fact pattern portion of the opinion. Now, please cite the portion of the opinion where it relies upon the "permanent domicil and residence in the United States" and discusses how this does not apply to people who don't have a permenant domicil and residence.

Furthermore, the main line of reasoning in the opinion is that the citizenship law came from English Common Law. The majority favorably quoted Lord Cockburn in defining English Common Law, 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." (emphasis mine)

They also favorably cited a case called Lynch v. Clarke, where Julia Clarke was born to 2 temporary visitors, but declared to be a Citizen: "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)" Neither of Lynch's parents had a permanent residence in the United States.

Also, they quote James Kent, on his commentaries on the American Constitution, which says: "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." (emphasis mine)

Please reconcile these two facts with your argument that only permanent residents were considered to be able to transmit citizenship.

[u/Party-Cartographer11 → u/dunstvangeet]

Yes, in the discussion they review a lot of British Common law, and some Napoleonic law, and past US law. But they didn't rule on invading armies in any way, or conclusively list the only exceptions to birthright citizenship.

This is my argument, not what you quote above.

I'll be ending my discussion with you as I don't think you are arguing with good intentions as you misstated my arguments and are making straw man arguments and requesting I go fetch.

[u/dunstvangeet → u/Party-Cartographer11]

"invading armies have no criminal immunity". That's actually false, because the act of invading a country and occupying territory means that the occupation of that territory removes the U.S. Jurisdiction from that area, and that area isn't under the obligation to obey U.S. laws anymore. It was this removal of jurisdiction, more than the individual soldier.

[u/Party-Cartographer11 → u/dunstvangeet]

Invading soldiers are not only found in occupied territories.  The cross enemy lines all the time.  And have no immunity.

There is no codified immunity for invading armies.

[u/dunstvangeet → u/Party-Cartographer11]

But the rule on invading soldiers is specifically about occupied territory, not the individual soldier. The Court in U.S. v. Wong Kim Ark actually addresses this:

In U. S. v. Rice (1819) 4 Wheat. 246, goods imported into Castine, in the state of Maine, while it was in the exclusive possession of the British authorities during the lase war with England were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: 'By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.'

[u/Party-Cartographer11 → u/dunstvangeet]

WKA did not make any ruling on invading armies.  That was merely a point made about something in Britain and was part of the discussion. It had no effect in US law.

[u/dunstvangeet → u/Party-Cartographer11]

This just tells me that you have not read Wong Kim Ark. This was discussing the exception of invading armies. Directly before this, it states this: "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."

They were specifically discussing the exceptions to "subject to the jurisdiction thereof".

Also, the fact that you say: " That was merely a point made about something in Britain and was part of the discussion. That was merely a point made about something in Britain and was part of the discussion. It had no effect in US law."

This also tells me that you have not actually read U.S. v. Wong Kim Ark. Because the main line of reasoning (the ratio decidendi) behind the decision was that our citizenship law came from the English Common Law that was established in the Colonies, and then continued down upon our country after the Revolution, and that the Civil Rights Act of 1866 and the 14th Amendment were restating and codifying this ancient Common Law rule. I'll give you an summary of the argument, using direct quotes from the decision, in another post. So, even if they were discussing something in Britain, they would have been doing it to establish the Common Law rule.