There is much discussion now on ending imposition of U.S. birthright citizenship for persons born in the US whose parents do not have a meaningful relationship with the country.
This discussion does NOT involve, as some very sloppy journalism suggests, ending ALL birthright citizenship, but rather, interpreting part of the already existing section one of the U.S. 14th amendment to mean that children born in U.S. to (e.g., Canadian) parents who do NOT have a legal/permanent/meaningful relationship with the U.S — should not receive U.S. citizenship at birth:
They are not actually subject to the jurisdiction of/allegiance to the U.S. — they are, for example, Canadians and they don’t deserve the benefits or negative consequences of U.S. birthright citizenship irrespective of consent or whether some might like the idea of having a second passport.
“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 hope that the United States Supreme Court will confirm this common sense interpretation of the U.S. 14th Amendment.
A sound argument could be made that if your parents are not also citizens and especially if they are not legally in the country, that their children born in the USA are not automatically citizens of the USA, because these children are jus sanguinis citizens of another country, and therefore subject to another jurisdicition.
There are many people today who wish they didn’t have USA citizenship but are having their bank accounts in their home country closed thanks to the USA’s implementation of FATCA rules. Trumps’ rule would be a benefit to these people.
I would argue further that “subject to the jurisdiction” should include people who are born to citizens and legal permanent residents of the USA (i.e., current and future greencard holders) and not to people who are on short term visitor, student or work permits.
For your reading pleasure:
https://www.bloomberg.com/news/articles/2018-10-30/these-birthright-citizens-welcome-trump-s-citizenship-rollback
The implications of this could be huge.
There are at least two possible meanings to “subject to the jurisdiction”:
1. Subject to territorial jurisdiction – in other words subject to the laws, etc. But, does this add anything to “being born in the USA”? If you are “born in the USA” then you are in the USA and are subject to the laws of the USA. In other words, if jurisdiction means “territorial jurisdiction” then the words “subject to the jurisdiction” don’t seem to add a great deal.
2. Subject to political jurisdiction – this is understood to mean in the sense of “allegiance”. Under this interpretation, then somebody born in the USA to a citizen of another country (who was not a permanent resident of the USA) might NOT be “subject to the jurisdiction”. This interpretation has the advantage of giving the phrase “subject to the jurisdiction” some meaning.
In any case, this has HUGE implications.
‘Apparently (if he is serious), he does not want to change the Constitution, but rather reinterpret, by Executive Order’
So what? When judges can reinterpret the constitution out of existence by court order, why shouldn’t presidents have the same power by executive order?
Or just declare that the hospital room where a person was born was territory of the mother’s country on the day that the person was born. Though the might have to pay royalties to Canada to use this intellectual property.
‘But how do you interpret the “Subject to the jurisdiction” clause?’
The same way as the US decided that US territories weren’t/aren’t subject to US jurisdiction because the US has jurisdiction to exclude them from US jurisdiction except when the US includes them in US jurisdiction.
If the person really weren’t subject to US jurisdiction they could commit murder without punishment, like border guards and police officers, or like US soldiers and contractors do in other countries, etc.
Trump’s earlier suggestion of relinquishing citizenship for the price of a flag and a matchstick was a better idea.
This would be FANTASTIC! Especially if it could be applied retroactively! It’s too late for me, since I’ve already renounced, but it would make life so much easier for fellow Brockers like me who never had any ties to the US except for having been born on American soil.
‘1. Subject to territorial jurisdiction – in other words subject to the laws, etc. But, does this add anything to “being born in the USA”?’
At the time the 14th amendment was enacted, people with black skin had recently become subject to laws of the US, people with red skin weren’t, and people with brown skin didn’t exist yet in US territories. Now people with red skin still somewhat aren’t, and people with brown skin depend on which US territory they’re born in.
‘2. Subject to political jurisdiction – this is understood to mean in the sense of “allegiance”.’
The US considers its non-citizen nationals to owe allegiance to the US.
Graham to introduce legislation to end birthright citizenship
If only they were so quick to introduce legislation to end “birthright taxation”!
My recommendation is not to get distracted and become desperate for relief, the real solution is to stand behind the FATCA Canadian Lawsuit and make the Canadian Government follow sovereign Canadian Law, The Charter, that protects Canadians from this entire situation.
Once one Country has the audacity and is brave enough to stand up for it’s Citizen’s Sovereign Rights, others will follow rapidly, Germany, The UK,……
“Subject to the jurisdiction” was likely put in to specifically exclude children born on U.S. soil to diplomats from other countries.
Everybody knows the world is subject to US jurisdiction. Heck, EU companies can’t even do business with Iran because of some form of US jurisdiction, not to mention, you know, citizenship based taxation. The idea that someone actually in the US, illegally or not, is not subject to US jurisdiction is absurd (exception being diplomats as Shovel points out). This is just another Trump Steak conveniently thrown to the base before Tuesday’s election. We will likely never hear of it again.
Yesterday BBC radio 4 had an American constitutional lawyer dicussing the meaning of ‘subject to the jurisdiction thereof ‘
She stated that the phrase was discussed and debated at length at the time prior to its enactment and the meaning was clear and applied to anyone regardless of immigration status. The only exception would be childten born to diplomats. She thought it would be interpreted in the same way by the Supreme court today whatever their political bias. It would need to be changed by a 2/3rd vote in Congress.
I can’t seem to locate the interview at present.
I’ve read that the phrase intentionally excluded American races. This is why Native Americans are allowed to operate casinos on their territory, trade tobacco without paying US taxes, etc.
If Trump can legally change the interpretation of the 14th amendment ( which was passed to ensure that the slaves freed by the 13th amendment would be deemed citizens, which they were not considered to be before then), then he can also interpret the Internal Revenue Code by Executive Order to only apply to US residents, which order stands a greater chance of withstanding Supreme Court challenge than a change to birthright citizenship!
Found it
https://iono.fm/e/620045
Around 3.00 min
BBC radio 4, World tonight.
“he can also interpret the Internal Revenue Code by Executive Order to only apply to US residents,”
Sure, but that’s what his party promised two years ago, so it can’t really happen, it can only be promised.
“which order stands a greater chance of withstanding Supreme Court challenge than a change to birthright citizenship!”
You think the Supreme Court would back down on Cook v. Tait? And give up all those lucrative penalties?
The bizarre thing is that children *not* born in the United States, and therefore *not* subject to its jurisdiction, can still get `blessed’ with citizenship if their parents are citizens, whether they like it or not.
So in summary, the system might be:
1) Born in Europe, never set foot in the US, US citizen parents, and white = citizen.
2) Born in the US, non-US citizen parent, and brown = non-citizen.
For 150 years this amendment has been interpreted to assign US citizenship to anyone born in the US and subject to its jurisdiction, regardless the citizenship or immigration status of the parents. Those not subject to its jurisdiction include foreign diplomats (and any invading military). An individual with diplomatic status in the US, who commits a crime, is expelled. A person born in the US, regardless the status of the parents, is subject to US law, i.e. subject to its jurisdiction.
Trump’s words are evidently intended to stir up his base for the upcoming elections, and probably nothing more. Any action of the kind he proposes is seen by a wide range of legal authorities as completely unconstitutional. If he can suspend one part of the Constitution, he can suspend all the rest. Those are the stakes.
This will go nowhere and has nothing to offer “Americans” living outside the US.
I am for the abolishment of an entirely jus soli system in the us. Unfortunately the 14th amendment prevents it. Children born to illegal immigrants are still subject to US jurisdiction. The only exception is a child born in the us to two foreign diplomats working on behalf of that foreign government. This is because the diplomat and their family would have diplomatic immunity and therefore not be subject to us jurisdiction.
Giving citizenship to people born in a country whose parents are illegals is down right crazy.
There is a reason that Ireland and Australia have recently abounded this type of system, because it’s an outstandingly bad system to have.
Sure, Trump has some wiggle room here. A person born of legal visitors or person who is illegally in the country doesn’t have to be deemed a citizen. This is a loophole that people who anchor babies and that the State Department is using against Accidentals.
“Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.”
Children born to diplomats are not subject to the USA. Why are courts or the President forced to conclude that other illegal or legal visitors who have children in the USA must be USA citizens? It makes no actual sense to give such people automatic citizenship.
http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/
And more to the point (from same web page):
“Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.””
Barbara: “If only they were so quick to introduce legislation to end “birthright taxation”!” Right on!
‘The bizarre thing is that children *not* born in the United States, and therefore *not* subject to its jurisdiction, can still get `blessed’ with citizenship if their parents are citizens, whether they like it or not.’
Congress can give naturalized citizenship to persons at birth. The 14th amendment does not prohibit Congress from giving citizenship.
Many countries give citizenship at birth to children of citizens of those countries who are born outside those countries. Congress isn’t even to be blamed for copying this practice.
‘Thomas Jefferson said “Aliens are the subjects of a foreign power.”’
That was before the War of 1812. I wonder if he would have changed his mind. However, stateless people existed while he was president — he even owned some.
“Many countries give citizenship at birth to children of citizens of those countries who are born outside those countries. Congress isn’t even to be blamed for copying this practice.”
True , but there aren’t any countries,excepting one, that expect such children to grow into tax slaves.
Although eliminating birthright citzenship may diminish the number of victims, the issue will always be the same ,eliminating taxing of individuals with no allegiances, no financial ties to the US,basically all non- homelanders abroad.
“Many countries give citizenship at birth to children of citizens of those countries who are born outside those countries. Congress isn’t even to be blamed for copying this practice.”
‘True , but there aren’t any countries,excepting one, that expect such children to grow into tax slaves.’
True. The solution to that is to stop repealing the Expatriation Act of 1868, not to start repealing the 14th Amendment.