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Started By
Message
re: Trump trying to end birthright citizenship
Posted on 10/30/18 at 10:16 am to cave canem
Posted on 10/30/18 at 10:16 am to cave canem
quote:
This has to be done through the amendment process, and I say this as someone in favor of ending it.
From the 1860's-1970's, Trump's interpretation was upheld by courts as the correct one. However, from the 1970's-present, the interpretation of the 14th to mean that all people born here are entitled to citizenship was not made by the SCOTUS or any court, but by an administrative agency. Trump, as chief executive can, by executive order, change an administrative interpretation. That is within his power so long as the interpretation is "reasonable" under a reading of the Constitutional provision or statute at question.
What Trump is doing is forcing SCOTUS to make their own interpretation of the 14th Amendment based on past precedent and legislative intent.
The process of interpreting a statute in the common law system is to first go to court precedent. If that does not have a clear answer, then consult the plain meaning of the wording. If the passage is still too vague, then legislative intent is considered (in the civil law system, the first step would be plain meaning, then legislative intent, and court precedent would be a last result).
Since the SCOTUS has never ruled on birthright citizenship for illegal immigrants, and there is no statute of Congress granting birthright citizenship to illegal immigrants, it is within Trump's executive power to issue this ruling, knowing it will invite a challenge. He wants a challenge because he wants to force SCOTUS to interpret them or force Congress to pass a law interpreting it.
2
Posted on 10/30/18 at 10:21 am to NewOrleansBlend
(no message)
This post was edited on 10/30/18 at 10:23 am
Posted on 10/30/18 at 10:22 am to kingbob
quote:
He wants a challenge because he wants to force SCOTUS to interpret them
Not going to turn out the way many seem to think, I fear
quote:
Congress to pass a law interpreting it.
Kinda, they can and should pass a new amendment specifically stating the wishes of the people but they have no power to interpret anything.
Posted on 10/30/18 at 10:22 am to bhtigerfan
quote:
That there is the answer.
But remember: courts do not rule on text alone. Many justices (in fact all justices) routinely take practicality and equity into consideration when making their rulings. While that answer may be technically correct, it may be so incredibly impractical and require measures that are so draconian to those who have been presumed to be citizens for the past 40 years, that justices may choose to find the textual argument unconvincing and weigh fairness more heavily.
I have never once met a jurist that didn't claim to be a textualist.
I have never met a jurist whose rulings were 100% (or even 75%) rooted in textualism.
For example: Judges issue harsher sentences when Tigers lose
This post was edited on 10/30/18 at 10:30 am
Posted on 10/30/18 at 10:24 am to Dale51
quote:
You're from NZ. Didn't they overturn their BC? What were there reasonings for it?
I left with my parents in 1974. My father is an American by birth as was his father, grandfather and great grandfather so I had automatic citizenship seeing as how my father worked for the US government.....but I also have dual NZ citizenship as well seeing as how my mother's family had been in NZ since about 1860-1870. All that paperwork was handled when I was a kid. I hold 2 passports but I only use the US one when traveling abroad.....so I'm bad to ask on that question because it's never been brought up. If I remember right, if one of your parents was a citizen of NZ then you are a citizen of NZ.
Posted on 10/30/18 at 10:25 am to kingbob
I just think it's awesome that wiki's page on the 14th amendment was:
quote:
last edited on 30 October 2018, at 13:56 (UTC).
Posted on 10/30/18 at 10:26 am to cave canem
quote:
Kinda, they can and should pass a new amendment specifically stating the wishes of the people but they have no power to interpret anything.
Where the Constitution pronounces, Congress passes laws to enact. The Executive then passes rules or orders to enforce those laws via the regulatory and law enforcement agencies of the federal bureaucracy. Where there is vaguery in the Constitution, Congress has the power to reasonably fill in the blanks. The executive branch has the power to fill in the blanks the legislative branch leaves.
The SCOTUS has the power to remove grey areas entirely when individuals challenge that the legislative or executive branch's attempts to fill those blanks is unreasonable because it invites SCOTUS to determine what interpretations ARE reasonable.
This post was edited on 10/30/18 at 10:29 am
Posted on 10/30/18 at 10:28 am to cave canem
quote:
You are going to be sorely surprised if you think Kavanaugh would be on Trumps side here.
I suspect that this was a question Trump asked Kav before nominating him.
Posted on 10/30/18 at 10:34 am to cave canem
quote:
You are going to be sorely surprised if you think Kavanaugh would be on Trumps side here.
This has to be done through the amendment process, and I say this as someone in favor of ending it.
We are a nation of laws and those have a process to be be changed, ruling by fiat is bad for this country and needs to stop.
You don't understand what Trump is doing. He knows this is going to be challenged in court and he wants SCOTUS to make a sweeping ruling on the 14th amendment. This has nothing to do with changing or not changing laws or the Constitution. This is forcing SCOTUS's hand on an issue that they have never really fully addressed.
Posted on 10/30/18 at 10:37 am to kingbob
quote:
kingbob
Please remark to the meaning of the bolded text:
quote:
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.
Posted on 10/30/18 at 10:39 am to browl
quote:
Please remark to the meaning of the bolded text
Please remark my 7 or 8 posts in this thread where I analyze that bolded portion and state the arguments both for and against Trump's interpretation of what that bolded part means.
Posted on 10/30/18 at 11:04 am to kingbob
Thanks.
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