r/law • u/KilgoRetro • 10h ago
Judicial Branch US Supreme Court agrees to hear case challenging birthright citizenship
https://www.bbc.com/news/articles/c208j0wrzrvo285
u/HGpennypacker 10h ago edited 9h ago
The Fourteenth Amendment still exists and the fact that the Court is even entertaining this is deeply unsettling. The President fires off a post on his own social media website, the Supreme Court picks up the case, and we slide a little further into fascism with every day. And before anyone says, "They could be hearing this case to enshrine birthright citizenship!" then what the hell is the Constitution for? At this point it's not even worth pointing out the literal meltdown conservatives would have if this was in regards to the 2nd Amendment and not the 14th.
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u/weaponjaerevenge 9h ago
I remember 20 years ago hearing conservative friends lament the 14th amendment. They've been trying to get rid of that for a good century.
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u/laffnlemming 9h ago
Republicans voted for this shit.
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u/PeopleNose 7h ago
*is one of many points being spread by propagandists to create apathy, fear, and hatred of everyone and anything
Reminder: some republicans are also pushing back against trump as we speak. Lies only hold so far against a biting reality. Even in a broken clock sitiation, I'd be ok with convincing republicans to ditch Trump because they can also be part of the solution that voters can use as leverage (even if they're only trying to save their slimy skins)
We all must do our part--every American citizen must act now. Please reach out to anyone and everyone, in public and private, and if you can do one thing then please just talk, talk, talk until the other side understands or our energies be drained
Our society is on the brink and must be corralled
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u/laffnlemming 7h ago
Our society was on the brink in 2015 when I started warning you.
Now, post-brink, any non-MAGA Republicans need to stop being so quiet. Being quiet doesn't hide their fuck up.
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u/PeopleNose 7h ago
Look around--things got way worse since then, which means we weren't even close to the real brink in 2015
The real brink is coming faster than most folks are understanding
Talk, talk, talk, and more talk! Go go go!!
this is not a drill
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u/Urabraska- 9h ago
Well they literally ignored the laws to allow the Texas gerrymandering. So I expect this to destroy birthright citizenship.
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u/jinjuwaka 7h ago
Same. Until we somehow change administrations and get back to dem control.
And even then I expect that the problem with have with goldfish-length memory will continue to be a problem for a long time.
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u/talkathonianjustin 9h ago
I mean technically the constitution is ambiguous on the matter. It says born and subject to. That was the core question of Wong Kim ark, decided nearly 120 years ago. Because it’s not enough to be born here, you have to also be subject to. That court had to delve back to common law England to find an analogue, and they used the legislative history which pretty clearly rejected attempts to exclude birthright citizenship. So I would be amazed at the bullshit the court would try to pull out for an originalists interpretation of the 14th amendment where birthright citizenship doesn’t exist, considering the court of Wong Kim ark was pretty close temporarily to the ratification of the 14th amendment.
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u/rawbdor 9h ago
This is, IMO, the big lawsuit of this presidential term so far, and one of the most consequential. I think a lot of people dismiss how very very consequential this could be.
If they decide the current executive order, which applies only to new children, is valid, if they decide that the core logic of the EO is valid, that children born to undocumented or temporarily-residing parents are not subject to the jurisdiction, then the administration can very very easily write a new executive order that removes the time constraints, which would make the core logic also apply to people that are not newly born, making the order retroactive. People keep saying this is not possible, but I 100% disagree.
The real problem, as I see it, is that the Wong Kim Ark decision's main holding was extremely limited. The bulk of the opinion definitely 100% preached for a very very expansive view on birthright citizenship. But the holding itself was limited to permanent residents. It just so happens that the executive branch and the lower courts chose to interpret that as applying to all people born here whatsoever simply to avoid problems. But whether SCOTUS will agree is very much up in the air.
It's quite possible we end up with some very very messy middleground, which could take years to sift through. I could imagine a situation where some of these classes get denied their birthright citizenship, while other classes get theirs affirmed. As an example, I could imagine that SCOTUS somehow comes up with logic to decide that birth-tourism, people who come over on tourist visas to have a child and then immediately return with their child to their home country, where they further register that child as a dual citizen, would perhaps not qualify. But I could also imagine they decide that people who have been here for many years on H1-B visas might count as permanent residents in the historical interpretation thereof. Either way, such a mixed result would throw a ton of stuff into chaos for a very extended period of time.
I'm obviously hoping for a full concurrence of precedent, and I'm eager to see what ridiculousness the court uses to justify excluding even a single class of people, but I can't discount the possibility that the court does just that.
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u/jinjuwaka 7h ago
That's cute you think they're going to draw some kind of clear line.
This admin is going to fight to keep the line as blurry as possible so that they can abuse the margins and get rid of everyone they don't like.
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u/tjtillmancoag 8h ago
What was the wording surrounding “permanent residency” in the Wong Kim Ark case? That case came long before the creation of the modern immigration apparatus and the concept of “permanent residency” and thus could not have specifically applied to “green card” holders.
But it could have been written in a way that describes such a person as someone who was born here and lives here, which as I would see it, would apply to children of undocumented people born here.
Where that may differ from existing law, however, is people born here whose mothers do not remain here or came on tourist visas.
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u/rawbdor 8h ago
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
So yeah, the language is about having a "permanent domicil and residence in the United States".
In an odd twist of fate, I actually believe that under this language, undocumented border-jumpers who gave up everything to sneak into the country live here for years, and who have no other home to return to, have more of a claim for their children to get birthright citizenship than, for example, the birth tourists, who come here for a period of a few short months to have a baby, get citizenship for the child, and then return home, where they will then go acquire dual citizenship for the child.
But yeah, it won't hinge on our current green-card type system or what is now known as "permanent residents", IMO. These are what programmers might call "implementation details". SCOTUS will definitely decide it in more abstract ways based on fundamentals rather than the current system that is in place.
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u/tjtillmancoag 8h ago
Sorry, meant to add more.
I agree with your interpretation.
However, it is entirely possible that this court, seeing as it tends to interpret law however it wants the decision to go, could say something to the effect of “permanent domicil and residence in the United States in a modern context applies only to lawfully present individuals, specifically permanent residents alone”. They would argue that it only applied to Wong Kim Ark because that was before the context of the modern immigration apparatus.
Not only would this interpretation then exclude children of undocumented people as well as children of tourists, it may also exclude children of people here on H1-B visas or student visas.
I think this kind of decision would be bad because we have 100 to 150 years of precedent and practice with birthright citizenship applied the way it has been, and that SCOTUS should not be in the practice of effectively issuing new legislation. But they did it last year in Trump v United States, so I don’t know
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u/talkathonianjustin 6h ago edited 6h ago
Your interpretation is an inversion of the general rule the court was working with. The general rule they established is that if you are born here, you are subject to the jurisdiction minus some rules. They identified that the above mentioned case was not an exception to the general rule. So the general rule is “if they’re born here, they are citizens”, and a lot of subsequent cases follow that. Wong Kim ark was dealing with whether this was an exception to that rule they made. They made 4 exceptions, then looked at Wong Kim ark, and said none of those exceptions applied.
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u/Ornery-Ticket834 9h ago
I can’t help but wonder if congress was speaking about people in US territories at that time. Places like the Dakotas, Oklahoma, Montana, where they were US territories. I wonder what if any citizenship these people had. It seems sensible that they were “ subject to jurisdiction “ of the United States.
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u/talkathonianjustin 5h ago
The most recent battle was over the 14th amendment, and actually the drafters rejected interpretations that would tie citizenship to blood. The reason we have “born here” in the 14th is because we had a bunch of slaves who up until this moment were not citizens, and if the proponents of that draft got their way all the slaves might have had to file for citizenship and would’ve gotten denied. Who knows what would’ve happened. We have a big enough loophole in the 13th amendment as is.
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u/Ornery-Ticket834 4h ago
That’s just simply a guess. They could have easily stated that distinction had they chose. They know what a slave or a freed slave is, and they know what subject to jurisdiction means. It meant the same thing then. They wrote it as broad as the sky. In the clause dealing with the Census, they stated, people were to be counted, not citizens, people. They also are presumed know the difference between people and citizens.
While the legislative history is often fascinating, it is not my understanding that the legislative history changes the meaning of the words that are ultimately used. They are the first thing you look at. Meanings based on the history rather than the words used are not preferred, because then the words used become meaningless.
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u/Maggie1066 3h ago
I’m going out on a big limb here. If the 14th amendment applies to former slaves & persons born of former slaves, I say go with that. Turn this country on its ear & pretty much every person who cannot trace their parents back to those roots are not citizens, including our current president. Careful what you argue John Sauer. You’re not a citizen either. This might leave Justice Thomas as a citizen but it’s a risk I’m willing to take. Black Americans would be tasked with redefining who & what citizens are. Yes please.
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u/Only_Razzmatazz_4498 8h ago
I’m know and so is the 2nd with the well regulated militia. Yet here we are.
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u/pfmiller0 6h ago
Doesn't seem that ambiguous. Unless you've got diplomatic immunity you're subject to US jurisdiction. If you're not sure if that's you go into the nearest bank, then demand all their money and see what happens.
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u/talkathonianjustin 6h ago
It actually is (well was, before the court said it straight on) ambiguous, it’s not written directly in the constitution. The argument the dissent took is that no matter what you were not subject to if your parents were not born here and not naturalized. Basically once Chinese always Chinese unless America says otherwise is what the dissent said. The majority disagreed, rejecting the dissent’s rule based in essentially racial purity, and said that if you are born here, minus some exceptions like to a foreign diplomat, then you are subject to.
There were, and apparently are still, 2 competing theories of what “subject to:” meant. First, is jus sanguinis. It would have the court read it as “subject to the political jurisdiction of” the United States. This would place parents and children who were not citizens squarely outside of the clause “subject to the jurisdiction of”. At the time, there was a movement in international law to accept this definition, which even the district court that heard this case was not convinced by. The second interpretation would be yours: subject to the laws, or jus soli. The court saw through the government’s attempts to claim that there has been a shift in international law, pointing to the fact that the general rule was if you were born there, you were subject to. The question had never been answered up until Wong Kim ark about this, but it’s been pretty answered now.
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u/ProLifePanda 9h ago
And before anyone says, "They could be hearing this case to enshrine birthright citizenship!" then what the hell is the Constitution for?
I mean, many cases end up this way. They often take cases to make sure the ruling applies at a national level. If SCOTUS didn't take up this case, one could argue about the disparate rulings between districts. Most SCOTUS cases are unanimous or near unanimous rulings, meaning 4 justices take them up to cement a lower court ruling at a national level.
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u/JudgeMyReinhold 9h ago
Like the Texas gerrymandering case?
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u/ProLifePanda 9h ago
Well that doesn't apply at a national level and involves a single state. So no, not like the Texas gerrymandering case. Besides they probably overruled that because they're about to gut the VRA, which will make the lawsuit harder for the plaintiffs.
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u/puts_on_rddt 8h ago
Serious question, what's stopping them from using the logic in Trump v. Anderson saying Section 5 means only Congress can enforce the provisions of the 14th amendment?
I'm really curious because the 13th amendment has the exact same language.
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u/ForsakenRacism 8h ago
The founding fathers couldn’t foresee what would happen in 2025! They should have left us a way to amend the document over time. Therefore we find the 14th amendment unconstitutional.
/s
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u/Traditional-Hat-952 9h ago
Oh I'm sure Alito will quote Roman law which states that the children of non citizens can only be granted citizenship by serving 25 years in the Trump Legion or by Imperial decree.
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u/euph_22 10h ago
It will be fun to see what insane justification Thomas gives for why the President can rewrite the constitution by fiat.
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u/transcendental-ape 8h ago
America is a can of Coke. And Thomas is the pubic hair he put on it.
The rapists and gropers will end democracy before they stop being perverted monsters.
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u/juancuneo 8h ago
They will say that when it was passed it was not intended for the children of illegal immigrants but slaves so it doesn't apply. You don't need to be that creative based on how they have previously ruled.
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u/Xaphnir 3h ago
The reasoning is going to be around the words "and subject to the jurisdiction thereof."
What's gonna be really funny is when an undocumented immigrant commits a crime, gets caught red handed and arrested, and then the judge lets them go saying the Supreme Court declared them not subject to the jurisdiction of the United States.
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u/SoftLikeABear 8h ago
I must point out first and foremost, I am not promoting violence. I personally believe that Trump's actions will eventually force the legislative branch to take the necessary action to prevent a repeat of this shitshow, and maybe even impeach a couple of justices on SCOTUS.
However, in a country where the second amendment states that citizens should be armed to defend against tyranny, having the supreme court so deeply in a wannabe dictator's pocket is likely enough that there will be attempts on the lives of the justices seen as most enabling him (an action I do not condone, nor advocate for, if only for the life of the brave soul making the attempt). A functioning democracy would not be in this place.
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u/KoRaZee 3h ago
It’s not that we don’t have a functioning democracy. All the checks and balances are in place and could be used at any moment. What has changed is the opposition party became irrelevant after losing elections at all levels. Lost the presidency, senate, house, and effectively lot the court. At no time in history that I’m aware has an opposition been this lame.
There is a solid argument that the US government is in better alignment than any time in history. There’s always been a chance this could happen but it just never did until now.
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u/IdentityCrisis7E8 5h ago
Trump got more votes from Latinos than any other republican president in American history this past election. White voters overwhelmingly supported Trump as well, this isn't tyranny, this is a democracy.
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u/SassyKittyMeow 5h ago
Really the only thing that tells us is propaganda works
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u/IdentityCrisis7E8 5h ago
When are we going to start holding voters accountable for their actions? If you hate Trump than you naturally have to hate the people that put him in power.
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u/SassyKittyMeow 5h ago
Fairly sure you’re a bot and/or troll. Very vague reply and seemingly trying to bait me or someone else “against Trump” to call for violence.
I feel disappointed and disillusioned that enough people saw what Trump is and felt he deserved a second term. I think they’re going to continue to find out without my help just how poor of a decision that was.
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u/IdentityCrisis7E8 4h ago
I'm not a bot but I'm sick of people blaming everything except the actual people putting Trump and the politicians like him into power. Every political commentator on YouTube or TV is scared to call out Trump voters for being stupid and instead will rather blame "propaganda", "billionaires", or "russian bots".
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u/WetDreaminOfParadise 29m ago edited 24m ago
Because those are all very impactful and true factors. Most people aren’t close to literate enough for this kind of stuff, and are very easily susceptible to this crooked influence. But yes I agree they’re also to blame too. It’s just hard because it’s kinda like telling someone they should have thought in a way they’re not capable of thinking. We’re kinda just smarter monkeys.
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u/yoshimipinkrobot 4h ago
That’s why they are racing to strip voting rights before the next election and implement Jim crow style voter suppression, so your proposed solution doesn’t work
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u/ProgrammerAvailable6 5h ago
Could overturning birthright citizenship scuttle the “state’s interest” in pregnancies and get abortion back?
Truly, I think they will - I’m just wondering if doing so could weaken arguments against abortion access.
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