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Trump immigration: citizens



Supreme Court, battleground of the Constitution, rules for Hobby Lobby. But is Neil Gorsuch a good candidate to sit here?

Donald Trump released his eighteen-point immigration plan yesterday. Any news organ having an objective mission would give each point as much attention as any other. All eighteen speak to how the late Senator Edward M. Kennedy (D-Mass.) broke our immigration system in 1965. To say nothing of how future Senators, and Presidents, broke it further since.

But thanks to Fox News, one point has received more attention by far than any other. The managing editors of Fox News cannot seem to make up their minds whether to like Donald Trump or loathe him. (Rumors abound, for instance, that Megyn Kelly fell out of favor for her outburst during the first Republican Top Ten debate.) Beginning early this morning, Judge Andrew P. Napolitano, late of the Superior Court of New Jersey (Essex Vicinage), gave an opinion on Trump’s eighth point: end birthright citizenship.

Judge Nap rules against Donald Trump

Judge Napolitano held: the United States Constitution grants birthright citizenship to absolutely any person born on American soil. At issue: Amendment XIV, Section 1.

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.

Napolitano held forth twice today on Amendment XIV Section 1, first on Fox and Friends and again on The Real Story. To sum up: the framers of that amendment intended to grant citizenship to all the former slaves of the now-conquered South. Today, says he, it grants citizenship to members of any particular group, no matter how odious other citizens might find them. If one is born on American soil (Jus soli, Law of the Soil), that alone suffices.

Your Honor, I object. I take exception to your opinion. Had you handed that opinion down as an official appellate opinion (say, from the Court of Appeals for the Third Circuit, which has jurisdiction over New Jersey), I would urge Mr. Trump to petition at once for a writ of certiorari to the Supreme Court.

A cert brief Trump might file

Donald Trump in 2011. He took on McCain. Maybe he's right.

Donald Trump speaking to the 2011 Conservative Political Action Conference. Photo by Gage Skidmore; CC BY-SA 3.0 Unported License.

Herewith at least the start of a “cert brief” Mr. Trump’s general counsel might want to consider, with due advice from any of several Constitutional scholars. And from Governor (and former Representative) Nathan Deal (R-Ga.).

In February of 2005, Mr. Deal introduced, in the 109th Congress, HR 698, the Citizenship Reform Act. Amendment XIV Section 1 says more than merely, “all persons born in the United States, are citizens of the United States.” After that comma, we read, “and subject to the jurisdiction thereof.” Jurisdiction means the authority of a court to apply a body of law to a case or person before it. Mr. Deal essentially held that not all persons setting foot in the United States, subject themselves to the jurisdiction of the United States.

Magruder (American Government) pointed out at least two classes of persons who do not subject themselves to the jurisdiction of the government of the United States:

  • Foreign ambassadors, other foreign ministers, consuls, their staffs, and other registered foreign agents.
  • Invading enemy soldiers who occupy United States territory with hostile intent.

Anyone can readily see: neither of the above describe people subjecting themselves to American jurisdiction. By every diplomatic convention, an ambassador subjects himself to the jurisdiction of the country who sends him. Likewise, his embassy, or headquarters and living quarters, qualifies as part of the soil of his sending country, not of the soil of the host country.

And what invading soldier would ever subject himself, of his own will, to trial in the country he is invading?

The status of a child born to a prisoner of war should fall under the Geneva Conventions. Curiously, the International Red Cross never once treated the status of a child born out of a relationship:

  1. Between two prisoners of war, or
  2. Between a prisoner of war and a guard or visitor, or
  3. Between an escaped prisoner of war and a civilian in the holding country.

A soldier stationed or training temporarily in the United States, would stay under a status-of-forces agreement. That agreement would government whether, and when, said soldier would subject himself to the jurisdiction of American courts. Such an agreement might specify that no such soldier falls under American jurisdiction. In that case, the Constitution would not grant birthright citizenship to a child born, say, to two soldiers stationed or training in the United States under that agreement. Congress could, by law, grant, or refuse, such birthright citizenship. (If the soldier involved had a relationship with an American citizen, and the child was born on American soil, Amendment XIV Section 1 might apply.)

Obviously Donald Trump did not consider any of these cases. Nor did he need to. The case at hand involves an illegal immigrant, crossing into the United States and giving birth after arrival.

Governor Deal proposed, in HR 698, to declare: illegal immigrants do not subject themselves to American jurisdiction. In particular, Governor Deal’s original law set strict criteria to declare what sort of child would subject itself to American jurisdiction:

  • A child born in wedlock, if either parent was a citizen, national, or lawful resident at the time, or
  • A child born out of wedlock, if the mother was a citizen, national, or lawful resident at the time.

An illegal alien cannot qualify under either of these criteria.

The American Citizenship Reform Act did not pass. But surely Donald Trump would intend to find another Representative to re-introduce HR 698 from the 105th Congress, see it pass, and sign it.

Where now does Judge Napolitano’s argument stand? Now he must argue that Amendment XIV does not distinguish between classes of children or their parents. More than that, Judge Napolitano assumes, a priori, that any child born in the United States subjects itself to the jurisdiction of American courts.

Donald Trump should ask Judge Napolitano, and ask the Justices of the Supreme Court if necessary, to consider that assumption, and whether it holds logically. Shall the United States Supreme Court declare that the children of foreign diplomats, if they be born in the infirmaries of their respective embassies or even in labor-and-delivery suites in American hospitals, gain American citizenship by birthright? Shall invading soldiers see their children become birthright citizens of the United States if they be born while said soldiers were occupying American soil with hostile intent?

Judge Napolitano suggests Donald Trump did not think the matter through. The learned judge needs to think this through. Surely he would recognize the utter absurdity of the above propositions. He then might recognize that “being born in the United States” does not automatically subject one to its jurisdiction. That might lead him to conclude that Congress may by law declare the children of illegal aliens out of the jurisdiction of the United State and therefore not birthright citizens.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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If an invading army is on our soil long enough to be starting families here, I think we have bigger problems than whether or not the child is a citizen by birthright.
If an illegal immigrant comes to the United States, the accept the consequences of their action if caught: imprisonment and (possible) deportation. At that point, they do in a sense subject themselves to the jurisdiction of the U.S. Their children, by virtue of living here as citizens, are equally subject to U.S. jurisdiction, and thus qualify under the fourteenth amendment.

[…] cycle, more than twenty-four hours later. Yesterday, Judge Andrew P. Napolitano asserted, but did not prove, the Fourteenth Amendment guarantees an absolute birthright of citizenship to any person born […]


With respect, the Constitution makes no such distinction. It merely says “born or naturalized in the United States, and subject to the jurisdiction thereof.” Second, what fraud was exercised by the unborn child carried across the border to be born? The person whose citizenship is in question here has not committed a fraudulent act.


I don’t know where you got that definition. “Subject to the jurisdiction thereof”:
Subject Matter Jurisdiction (A similar concept): “The power of a court over the nature of a case and the type of remedy demanded.” (Cornell)
Essentially, if a U.S. Court can try them, then they are subject to the jurisdiction of the United States. Children of illegal immigrants are born in the United States, and are tried in U.S. Courts, and therefore meet both qualifications under the fourteenth amendment, and are citizens by birth.

But the child, therefore, has not committed any fraud. The citizenship of the parents is not up for argument, only the citizenship of the child.


So you’re conceding the point about those children being under the jurisdiction of the United States? If you are (since you failed to offer a rebuttal to that part) then that’s all you need. If the child is born here and under U.S. jurisdiction, then they are a citizen, regardless of fraud perpetrated on behalf of the parent.
On the issue of that fraud, you’re essentially holding the child responsible for the crime of a third party. What you’re suggesting is akin to sending a man’s wife to prison along with him after he’s convicted of armed robbery.


If you’re not conceding the point, then please offer a response. If you respond to one of the points I make and not another made at the same time, it looks like you don’t have one.
I said, 1) Children of illegal immigrants do fall under the jurisdiction of the United States, and 2) That the child perpetrated no fraud. You responded to point 2, but not point 1, so if you have a response to point 1 then please offer it.


As I said above: Subject Matter Jurisdiction (A similar concept): “The power of a court over the nature of a case and the type of remedy demanded.”
We try children of illegal immigrants in U.S. Courts, and therefore we acknowledge that they fall under our jurisdiction.


Congress has made no move to do so during the many years in which this has been an issue, and until they do the children would remain under the jurisdiction of U.S. Courts. If you’re relying on an act of Congress to _remove_ jurisdiction, then that implies the jurisdiction does exist. Thus, for now, the children of illegal immigrants born in the United States do fall under U.S. jurisdiction.


Then until Congress acts to remove jurisdiction, do the children fall under U.S. jurisdiction? The status quo is that the children are being tried in U.S. Courts, and thus are under their jurisdiction. Congress has not opted to change that by stripping jurisdiction, so for the time being they meet the requirements for birthright citizenship.


But regardless of the wrongs perpetrated using them, what is the justification for them not receiving birthright citizenship under the Fourteenth Amendment?


Okay, so then there is no Constitutional basis for denying the children of illegal immigrants birthright citizenship, only the basis of stopping a vast Mexican conspiracy from staging a revolution in the southwest.
As far as Elk v. Wilkins is concerned, the actual quote is: “an Indian cannot make himself a citizen of the United States without the consent and cooperation of the government”
The case therefore is only concerned with Native Americans.


With respect, no it doesn’t. Here is the full text of the decision:
The word “consent” appears 7 times:
1) “The treaty of 1867 with the Kansas Indians strikingly illustrates the principle that no one can become a citizen of a nation without its consent, and directly contradicts the supposition that a member of an Indian tribe can at will be alternately a citizen of the United States and a member of the tribe.”
This is the closest to the wording, but it cites a treaty that had not only been broken by the United States, but also was eventually overturned in the 1903 Lone Wolf v. Hitchcock decision: ://
2) and 3) “No one who has heretofore consented to become a citizen, nor the wife or children of any such person, shall be allowed to become members of the tribe except by the free consent of the tribe after its new organization and unless the agent shall certify that such party is, through poverty or incapacity, unfit to continue in the exercise of the responsibilities of citizenship of the United States and likely to become a public charge.”
This passage merely states that one can’t be a citizen of both a tribe and the U.S., which isn’t relevant to immigrants and has also been overturned.
4) “But an Indian cannot make himself a citizen of the United States without the consent and cooperation of the government.”
This is the quote I supplied earlier, and concerns itself only with Native Americans.
5) “To be a citizen of the United States is a political privilege which no one not born to can assume without its consent in some form.”
The United States, in treating the children of illegal immigrants as citizens, has consented to their citizenship.
6) “Congress consented that the lands reserved for their use might be partitioned among the individuals composing the tribe.”
Not referring to citizenship or immigrants.
7) “Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the states, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race.”
Referring only to Native Americans.


First of all, I haven’t mentioned, and certainly haven’t “hung [my] hat on” INS v. Rios-Pineda. The only person who has mentioned that decision in this discussion is you, just now. All I have done is demonstrate that the children of illegal immigrants do fall under the jurisdiction of United States Courts, so by virtue of being born here and falling under U.S. jurisdiction, they do gain citizenship by birth. You have gone from offering a definition of “subject to the jurisdiction thereof” which you proceeded to abandon, to saying that we cannot allow people (the parents, not the child whose citizenship is the topic at hand) to benefit from fraud, to saying the children fall under the jurisdiction of the sending country (since we try them in our Courts, we acknowledge jurisdiction), to saying Congress can strip jurisdiction away (they haven’t done so), to saying you will never accept birthright citizenship for these children because they’re going to vote to return the southwest and Florida to Mexico somehow, to offering a quote from Elk v. Wilkins which does not appear in the decision, and the closest thing to it has been overturned by a later decision in 1903, to finally saying that I am hanging my hat on INS v. Rios Pineda. That’s the first time the decision has come up, and the only person who has mentioned it is you.
As far as that particular decision is concerned, it made no determination about the citizenship of the children, only that they did not constitute a compelling enough reason to not deport the parents, so its relevance to this topic is spurious at best.


That’s pretty much a non sequitur. I demonstrated the outline of your argument throughout the discussion to show how the only mention of INS v. Rios-Pineda had come from you and to show that I was not hanging my hat on that decision at all. You responded by accusing me of wishful thinking in some respect and then making a blanket attack on the progressive movement. At no point did you refute the argument I made.

[…] not when CNAV has an anti-bot firewall in place.) For the benefit of those who didn’t see them, here they are. (See also Dwight Kehoe’s treatment of the Fourteenth Amendment.) But CNAV notes other […]


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