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Started By
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re: Primer on US Citizenship, with an Emphasis upon Birthright Citizenship
Posted on 10/31/18 at 11:38 pm to AggieHank86
Posted on 10/31/18 at 11:38 pm to AggieHank86
quote:
Regardless of what the Constitution says (certainly an academically interesting question)
Not that interesting though, since the answer is widely known, and it is obviously that children born on US soil to undocumented immigrants ARE natural born citizens of the United States.
LINK 2
And if you wish to read the debates for yourselves.
3
Posted on 11/1/18 at 1:19 am to WillRogue
Women from Asia and Russia will come here to have their babies then return to their home country. When their kid is old enough to live on their own they come here as citizens then bring the family over with the chain migration crap.
Posted on 11/1/18 at 4:58 am to WillRogue
Will, let’s be clear. I think that birthright citizenship for the children of illegal residents of this country is bad policy, and I do not argue with the clear intent of the drafters of the 14th Amendment. The question is whether the intent comes into play in interpreting the provision in question.
There are more than a dozen different schools of thought regarding methods of Constitutional interpretation, with much overlap among many of them.
A pure Originalist would give significant deference to the “intent” argument regarding the 14th. A Textualist or a Strict Constructionist would give far less such deference, relying upon “intent” primarily in the face of ambiguity in the actual language of the provision in question. There is little ambiguity in the “birthplace” clause, so the struggle for a Textualist or Strict Construcionist would be whether there is any such ambiguity in the “jurisdiction” clause.
So, which of the right-leaning SCOTUS Justices would take an Originalist view, versus a Textualist or Strict Constructionist view? (For purposes of this limited discussion, we can discount the liberal wing of the Court in this discussion, since they will not follow any of these three approaches.). Would the latter see any ambiguity in the second clause, allowing them to examine the intent of the drafters? Would any of the right-leaning Justices defect on this issue?
Again, an academically-fascinating set of questions.
There are more than a dozen different schools of thought regarding methods of Constitutional interpretation, with much overlap among many of them.
A pure Originalist would give significant deference to the “intent” argument regarding the 14th. A Textualist or a Strict Constructionist would give far less such deference, relying upon “intent” primarily in the face of ambiguity in the actual language of the provision in question. There is little ambiguity in the “birthplace” clause, so the struggle for a Textualist or Strict Construcionist would be whether there is any such ambiguity in the “jurisdiction” clause.
So, which of the right-leaning SCOTUS Justices would take an Originalist view, versus a Textualist or Strict Constructionist view? (For purposes of this limited discussion, we can discount the liberal wing of the Court in this discussion, since they will not follow any of these three approaches.). Would the latter see any ambiguity in the second clause, allowing them to examine the intent of the drafters? Would any of the right-leaning Justices defect on this issue?
Again, an academically-fascinating set of questions.
Posted on 11/1/18 at 5:08 am to Antonio Moss
8 USC 1401 is indeed the statute. The definition that I was thinking of is actually found in the CFR rather than the USC, which changes the discussion slightly. 31 CFR 515.329
In my view, however, they would not reach the question of ambiguity in the 14th unless Congress amends 1401 to exclude citizenship.
quote:If POTUS were to issue an executive order changing that definition, it would be necessary to follow CFR rulemaking procedures for revision of 515.329. If POTUS were to attempt to implement a revocation or revision of 515.329 WITHOUT going thru the rulemaking process, he will run into trouble in the courts. If he DOES follow the CFR amendment process, the Supremes COULD conceivably reach the question of an ambiguity in 1401 sooner. I got the impression that he was planning to act by fiat rather than rulemaking, but (of course) we have not seen a draft of this theoretical EO.
The terms person subject to the jurisdiction of the United States and person subject to U.S. jurisdiction include:
(a) Any individual, wherever located, who is a citizen or resident of the United States;
(b) Any person within the United States as defined in § 515.330;
(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.
In my view, however, they would not reach the question of ambiguity in the 14th unless Congress amends 1401 to exclude citizenship.
This post was edited on 11/1/18 at 7:44 am
Posted on 11/1/18 at 5:10 am to AggieHank86
We are in a war. The utility of law exists only insofar as it enables victory. This has been the playbook of the left for decades.
Posted on 11/1/18 at 5:14 am to cave canem
quote:I was discussing statues, not Constitutional amendments. I thought that this was fairly clear from context, but perhaps not.quote:Congress can pass an amendment any time it wishes you ignorant troll, you know, kind of like the 14th.
Congress can expand upon those minimums any time it wishes, but it cannot NARROW the right to citizenship beyond the minimums set forth in the Constitution.
Sure, Congress can theoretically “pass” a birthright Constitutional amendment (good luck, given the makeup of Congress), but it would have to be ratified. Given political reality, that is just not going to happen. So my discussion has focused upon politically-feasible scenarios.
quote:You and I have disagreed a grand total of twice. In neither case have I “hidden.”
His MO is make claims then when asked for a link or presented with the truth to slink off and hide.
On the question of asylum, I actually confirmed that a (tiny) minority of international law experts share your view regarding “first country.”. I also linked to at least one treatise that disagrees with you and which represents the majority view. You stomped your feet and insisted that the minority view is the correct one. I did not see further discussion as being productive. Not sure where you saw “hiding.”
On this “birthright” issue, our entire disagreement seems to revolve around direct citation to a provision of the USC or CFR. My apologies if work, dinner and sleep (after almost twelve hours on a tractor) delayed my response by a few hours too long for you.
This post was edited on 11/1/18 at 8:08 am
Posted on 11/1/18 at 5:20 am to Havoc
quote:I am genuinely curious as to what you consider “liberal” about my OP.
I love the lying fricking liberal version of things.
It did not even take a substantive position regarding “anchor babies.”. It simply examined the judicial process that a challenge will need to pursue.
Please expound.
Posted on 11/1/18 at 6:00 am to AggieHank86
quote:
8 USC 1401 is indeed the statute. The definition that I was thinking of is actually found in the CFR rather than the USC, which changes the discussion slightly. 31 CFR 515.329
Does the Title 31 definition matter for this argument, though? Not gonna pretend to be an expert here but I thought the definitions were typically limited to the particular title and not universally applicable? Am I wrong about that? I mean, “person subject to” is redefined in Part 535 (albeit consistent with the 515 definition) and that’s even within the same Chapter.
Again, I’m way out of element here so genuine question.
Posted on 11/1/18 at 6:25 am to AggieHank86
quote:
We can probably all agree that the Constitution does not guarantee US citizenship to every left handed midget born on the planet Earth
Why do you hate left handed midgets?
Posted on 11/1/18 at 7:04 am to Antonio Moss
quote:Right. That is what I've seen as well.
I linked 8 USC 1401 which is the federal statute outlining citizenship standards. It uses the same language as the 14th.
quote:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside the geographical limits . . .
Posted on 11/1/18 at 7:32 am to Jorts R Us
quote:My practice has alwys been almost exclusively in state courts, and the little fed work has not involved the CFR.
Does the Title 31 definition matter for this argument, though? Not gonna pretend to be an expert here but I thought the definitions were typically limited to the particular title and not universally applicable? Am I wrong about that? I mean, “person subject to” is redefined in Part 535 (albeit consistent with the 515 definition) and that’s even within the same Chapter.
Again, I’m way out of element here so genuine question.
My guess is that inconsistent definitions would be limited to application within a single title, but that a definition in one title would have SOME authority (even if not mandatory) in other titles if the term is defined in only one place.
Posted on 11/1/18 at 8:00 am to Wtodd
quote:
Why do you hate left handed midgets?
This post was edited on 11/1/18 at 8:01 am
Posted on 11/1/18 at 8:19 am to AggieHank86
quote:
The definition that I was thinking of is actually found in the CFR rather than the USC, which changes the discussion slightly. 31 CFR 515.329
It changes the discussion tremendously on a fundamental level.
Posted on 11/1/18 at 8:24 am to AggieHank86
quote:
My guess is that inconsistent definitions would be limited to application within a single title, but that a definition in one title would have SOME authority (even if not mandatory) in other titles if the term is defined in only one place.
The regs you quote define “subject to jurisdiction thereof” in terms of Cuban Asset Control under which the first subsection declares that all definition are only applicable to that narrow provision.
It bears no weight on defining citizenship under either the statutes or Constitution.
What we are left with is an issue that has not been clarified by any branch thus leaving initial interpretation with the INS of which the President ultimately controls.
Posted on 11/1/18 at 8:27 am to WillRogue
The Atlantic article is a perfect example of why journalists make shitty lawyers.
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