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Revisiting Birthright Citizenship Oral Arguments - Jus Soli - Exceptions
Posted on 4/3/26 at 10:35 pm
Posted on 4/3/26 at 10:35 pm
In Wednesday's oral arguments the respondent's attorney (Cecillia Wang) noted there are a "closed set of exceptions" to jus soli ("right of soil), i.e., one is a citizen of the soil on which they're born.
Wang affirms the exceptions as: "The only exceptions again at common law were ambassadors, people born on foreign ships, and people who are born during periods of foreign occupation." [85]
I don't recall if she spoke to the converse - that is, if American mom gave birth on foreign soil as a tourist, would that child become a citizen of the nation in which they were born assuming that nation also codified jus soli.
Justice Thomas asked a pretty good question . . .
What she earlier claimed was a "universal rule" [81] now has arbitrary exceptions. She wants to have her jus soli cake and eat her closed set of exceptions too.
Do you think her line of reasoning is sound? If not, poke holes in it.
FTR, earlier she claimed this: "Ask any American what our citizenship
rule is and they'll tell you, everyone born here is a citizen alike." [80] Do I qualify to respond to this?
Note: references are from the page #s of the transcript pdf linked below.
SCOTUS Oral Argument Transcripts
Wang affirms the exceptions as: "The only exceptions again at common law were ambassadors, people born on foreign ships, and people who are born during periods of foreign occupation." [85]
I don't recall if she spoke to the converse - that is, if American mom gave birth on foreign soil as a tourist, would that child become a citizen of the nation in which they were born assuming that nation also codified jus soli.
Justice Thomas asked a pretty good question . . .
quote:[83]
JUSTICE THOMAS: What is the underlying rule of law that you use to connect these five exceptions?
MS. WANG Sure. So, as I just said, all of the exceptions involve situations where that U.S.-born child is not subject to the jurisdiction of the United States because that extraterritoriality, the fiction of extraterritoriality, the interaction of another sovereign between the United States jurisdiction and that person, applies to the child as well as to the parent.
What she earlier claimed was a "universal rule" [81] now has arbitrary exceptions. She wants to have her jus soli cake and eat her closed set of exceptions too.
Do you think her line of reasoning is sound? If not, poke holes in it.
FTR, earlier she claimed this: "Ask any American what our citizenship
rule is and they'll tell you, everyone born here is a citizen alike." [80] Do I qualify to respond to this?
Note: references are from the page #s of the transcript pdf linked below.
SCOTUS Oral Argument Transcripts
This post was edited on 4/4/26 at 11:56 am
8
Posted on 4/4/26 at 3:21 am to AlwysATgr
Why make this hard. Ther are hundreds of. Chinese companies that fly pregnant Chinese toUSA the Chinese woman gives birth then fly mother and baby back to CCP. The baby gets USA citezenship, and is never under the jurisdiction of the USA….
There are millions of these babies, which is leading to over a million CCP voters in USA elections by 2030
There are millions of these babies, which is leading to over a million CCP voters in USA elections by 2030
This post was edited on 4/4/26 at 3:23 am
Posted on 4/4/26 at 4:47 am to AlwysATgr
quote:
I don't recall if she spoke to the converse - that is, if American mom gave birth on foreign soil as a tourist, would that child become a citizen of the nation in which they were born assuming that nation also codified just soli.
The child would become a citizen of that nation through jus soli. They could also apply for US citizenship and it would be granted if one of the parents was a US citizen and that parent (or both) met the physical presence requirement, which IIRC, is five years prior to the birth. A simple US citizen tourist's child would have no issues. They could also be dual citizens.
First, let's deal with the concept of a legal fiction. This is when in law a set of facts are assumed to be true even if they aren't or have not been proven. A classic example is the fiction of corporate personhood. While they are clearly not people the fiction is required to allow them to sue and be sued for example.
Regarding Justice Thomas' question, it helps to know a little about him. Although he has become much more verbal during oral arguments recently, the question is a derivation of one you always have to be ready for from him. He follows originalist textualism. He is looking for you to be able to tie your exceptions or rules back to either 1761 or 1868 (The Constitution or 14A). He doesn't like modern interpretations and multi-prong tests as not being rooted far enough back. Wong being in 1898 is a little too contemporary for him.
To a degree, I feel like it is just one of his routine questions but I think it has emphasis on how to tie the the applications/exceptions back to the 14A or Constitution. Thomas has no problem getting rid of "modern" tests and exceptions even if they are over 125 years old.
I don't think this part of her reasoning is unsound. One thing I should mention is that the "exceptions" are not actually exceptions but instead what is considered applications. While it is outlined in the briefs and I doubt anyone on the bench or the lectern would have disagreed, they bounced back and forth, often using the misnomer. I would point out the applications or exceptions if you will are not arbitrary at all. Each one is crafted to avoid a loophole that was specifically not intended to remain. It is basically the opposite or arbitrary.
I do hope that, whether the majority opinion or dissent, Justice Thomas writes that opinion because I would really like to read his personal POV on the matter.
The primary reason I want his opinion on record is that he will almost certainly rule in favor of Trump and not Barbara, and I really want to see how he justifies that opinion with his originalist textualist predilections.
This is one of the multitude of cases that revolve around how the US/world has changed in the last 125-200 years. I think it is completely fair to say the laws vis-a-vis birthright citizenship as they stand are woefully inadequate to deal with modern America. This has to produce a major conflict within an originalist/textualist/strict constructionist.
ETA I meant to mention to edit your post, it is jus soli, not just soli, and a thread title error often derails a thread
This post was edited on 4/4/26 at 10:40 am
Posted on 4/4/26 at 1:25 pm to Obtuse1
quote:
Obtuse1
Merci beaucoup for taking time to respond as thoroughly as you did and for the correction (I think I corrected them all).
As for the "applications" Wang used, you wrote:
quote:
Each one is crafted to avoid a loophole that was specifically not intended to remain.
So to drill down a little deeper, on what basis would one want to "avoid a loophole" in jus soli? Why do that? Why did someone not want then to remain?
Side question: you mentioned "either 1761 or 1868 (The Constitution or 14A)." What was the significance of 1761 for Thomas?
Posted on 4/4/26 at 1:30 pm to AlwysATgr
quote:
people who are born during periods of foreign occupation
Well shite, there it is.
According to the left we are on occupied land of Native Americans so, no one has birthright citizenship.
Posted on 4/4/26 at 1:32 pm to AlwysATgr
quote:
So to drill down a little deeper, on what basis would one want to "avoid a loophole" in jus soli? Why do that? Why did someone not want then to remain?
Wong Kim Ark goes into all of this in great detail
quote:
The exceptions afterwards mentioned by Mr. Dicey are only these two: '(1) Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien.' '(2) Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the crown by the sovereign of a foreign state is (though born within the British dominions) an alien.' And he adds: 'The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of Enl and; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown
quote:
Chancellor Kent, in his Commentaries, speaking of the 'general division of the inhabitants of every country, under the comprehensive title of 'Aliens' and 'Natives," 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.' 'To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state, while abroad, and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.' 2 Kent, Comm. (6th Ed.) 39, 42. And he elsewhere says: 'And if, at common law, all human beings born within the ligeance of the king, and under the king's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.' "Subject' and 'citizen' are, in a degree, convertible terms as applied to natives; and though the term 'citizen' seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, 'subjects,' for we are equally bound by allegiance and subjection to the government and law of the land.' Id. 258, note.
quote:
He then stated, and supported by argument and illustration, the propositions that 'this full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power,' has 'given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation,' the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because 'a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation'; 'a second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers'; 'a third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions'; and, in conclusion, that 'a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.' 7 Cranch, 137-139, 147.
70
As to the immunity of a foreign minister, he said: 'Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents, or by a political fiction suppose him to be extraterritorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides, still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it.' 'The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from h e considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose cannot intend to subject his minister in any degree to that power; and therefore a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain,—privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.' 7 Cranch, 138, 139.
71
The reasons for not allowing to other aliens exemption 'from the jurisdiction of the country in which they are found' were stated as follows: 'When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption.' 7 Cranch, 144.
Posted on 4/4/26 at 1:38 pm to AlwysATgr
The ENTIRE world wants to be a part of the greatest nation EVER......
And then, they take advantage of the freedom we offer!
Screw them, AMERICA FIRST!
And then, they take advantage of the freedom we offer!
Screw them, AMERICA FIRST!
Posted on 4/4/26 at 1:40 pm to SlowFlowPro
To summarize, for diplomats, it's an agreement among sovereigns that they give up sovereignty over these people. This means no civil or criminal jurisdiction, as the diplomats remain subject to the jurisdiction of their home country.
For those population in areas under hostile occupation, the US lost its jurisdiction over this area once occupied by a foreign power. So instead of ceding sovereignty by choice (like above), this was by force.
Indians were an idiosyncratic population who got their own rule because they were the only people who could be born in a separate country within the territory of the US. Think of it like Liechtenstein. This unique situation + a lot of racism in forming the unique situation forced bad law, like Elk v. Winkins.
For those population in areas under hostile occupation, the US lost its jurisdiction over this area once occupied by a foreign power. So instead of ceding sovereignty by choice (like above), this was by force.
Indians were an idiosyncratic population who got their own rule because they were the only people who could be born in a separate country within the territory of the US. Think of it like Liechtenstein. This unique situation + a lot of racism in forming the unique situation forced bad law, like Elk v. Winkins.
Posted on 4/4/26 at 1:41 pm to oldskule
quote:
The ENTIRE world wants to be a part of the greatest nation EVER......
And then, they take advantage of the freedom we offer!
And destroy it in the process.
The savages from shithole parts of the world don't comprehend planning and preparing for the future. They only understanding taking and scavaging in real time.
This post was edited on 4/4/26 at 1:59 pm
Posted on 4/4/26 at 1:43 pm to AlwysATgr
So if I understand the leftists correctly, my ancestors stole the land centuries ago, but the anchor baby dropped here ten minutes ago is entitled to it?
Posted on 4/4/26 at 1:46 pm to Don Quixote
quote:
So if I understand the leftists correctly, my ancestors stole the land centuries ago, but the anchor baby dropped here ten minutes ago is entitled to it?
Why did you try to break this down into a partisan issue?
Posted on 4/4/26 at 1:56 pm to AlwysATgr
quote:
"Ask any American what our citizenship rule is and they'll tell you,
They will tell you there opinion and the overwhelming majorities opinion will not be based on the law.
The fact that the law is clearly written and yet that is part of the response to a question gives me pause to think this might not be an open and shut case regardless of whether or not it should be.
Posted on 4/4/26 at 1:58 pm to Don Quixote
quote:
So if I understand the leftists correctly, my ancestors stole the land centuries ago, but the anchor baby dropped here ten minutes ago is entitled to it?
Good point.
Posted on 4/4/26 at 2:09 pm to geoag58
quote:
Good point.
It's really not
Posted on 4/4/26 at 2:14 pm to AlwysATgr
quote:
either 1761 or 1868
1761 was meant to be 1787, I have no idea where the '61 came from. The only thing remotely related to the colonies was I think that is the year George III took power, but that was certainly not what was in my head.
quote:
So to drill down a little deeper, on what basis would one want to "avoid a loophole" in jus soli? Why do that? Why did someone not want then to remain?
They are simply situations the Wong court could forsee that they wanted to avoid bestowing citizenship in. Primarily having to do with foreign diplomats, occupying armies, and the like. If they had been able to imagine birth tourism, they likely would have carved that out too. That being said, the Constitution itself would be a vastly different document had the framers been able to see 250 years into the future. It would not have been nearly as elegant though but I also don't think they could imagine that it would become basically impossible to amend the Constitution.
Posted on 4/4/26 at 2:35 pm to SlowFlowPro
quote:
quote:
Good point.
It's really not
Yes, it is.
Posted on 4/4/26 at 3:06 pm to Zgeo
Require pregnancy testing for all visa applications. Or test at immigration control at airports and deny entry for all pregnant women and their families.
Posted on 4/4/26 at 3:12 pm to AlwysATgr
quote:
What is the underlying rule of law that you use to connect these five exceptions?
Thomas was pulling from her that the underlying rule is the 14th Amendment, not the common law.
Posted on 4/4/26 at 3:27 pm to Riverside
quote:
Thomas was pulling from her that the underlying rule is the 14th Amendment, not the common law.
WKA shows it existed long before the 14A.
I've quoted examples from the case proving this
Posted on 4/5/26 at 2:39 am to SlowFlowPro
quote:
SlowFlowPro
I know you get a lot of flak on PT but you seem to enjoy it all the same. Nonetheless, thanks for the quotes from WKA.
But they are still falling short of giving a basis for the exceptions to the 'rule.' Using jus soli as our point of departure, on what basis or what principle does Chancellor Kent advance his exceptions? As far as I can tell, there is no principle given; it's all pragmatics.
Beyond that, the quotes in some cases seem nonsensical.
In the second quote, Kent wrote:
quote:
To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government.
Is a "party" born? It's children who are born. And how does a newborn know who of his/her ligeance? The tenor of this quote is that children born within the territory of a king, become subjects to the king. This is polar opposite of today. Then, according to Kent, if the king levies a tax at say 5 years of age, the child, because of their birth legiance, is obligated to pay it.
In the "70" quote, it states ". . . without such exemption, every sovereign would hazard his own dignity . . ." When extrapolated to today's context of birthright tourism and anchor babies, don't they hazard our dignity just as much if not more than a diplomat dispatched to another nation and then required to replace his first loyalty to his king?
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