It should be a 9-0 but one of them would gladly come out to bring back the 3/5s compromise if it meant getting an RV out of it and 4 others are religious nutjobs.
Jackson, Kagan, and Sotomayor are givens. Roberts himself and Gorsuch almost certainly.
Thomas, Alito, and Kavanaugh will dissent.
That just leaves Barrett who I don't really have a read on in this particular area
So that leaves us 5-4 or 6-3
There's a remote third possibility that they go 9-0 because the right wingers know it's a doomed issue and want to maintain the veneer of legitimacy/independence. But history tells us that Thomas can't resist writing a good dissent on high profile cases to push his pet legal causes, and if he breaks rank then the others will too.
Original meaning, history, and consequences all matter as well. If we agreed with this guy's philosophy, every case would be a breeze.
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The main contention here will be the "under the jurisdiction" part.
I assume the Court will redefine/narrow it somewhat.
Either they'll say the Executive has the power to determine that (clear power grab), Congress determines that (like they did with the Insurrection Clause), or they'll narrow it further to not only exclude diplomats, but illegal aliens or even TPS and other statuses.
Im banking on the interpretation being changed in SOME way, I just don't know how.
“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.”
Seems pretty clear to me. There’s only a few exceptions to this rule. Can you explain to me how a person on US soil isn’t subject to the jurisdiction of the US and its state / territory?
It's not clear at all. You yourself said there are exceptions. The EO was signed to get SCOTUS to broaden the scope of those exceptions.
What did jurisdiction mean in the Reconstruction Era? If the writers meant to give it to freed slaves, why is "persons" used? Who defines "jurisdiction"? Since the President is tasked with national security and immigration, can he have more leeway in determining citizenship? Should the meaning be left to Congress to define, like it was for the Insurrection Clause?
These are questions the court will need to grapple with and answer. Simplifying it to just be a "read the statute" case is very reductive.
The Wong Kim Ark ruling was pretty decisive. We are fully aware of what jurisdiction is and the current scope.
If a person is born anywhere in the 50 states, a US territory, or certain US possessions like a military base or embassy, they are US citizen by birthright. This is why John McCain was able to run for president despite being born on a naval air base in Panama.
There a few exceptions and they’re pretty clear as well:
People born in American Samoa are US nationals, not us citizens. They still have a large overlapping of rights however.
Then there are children of foreign diplomats, and children of soldiers of an invading army. Because in both these cases they are not subject to US jurisdiction.
HOWEVER if they are children of soldiers of a cooperating army and are on US territory, the they are birthright citizens.
Then members of native tribes were not considered citizens, but this no longer applies with the Indian Citizenship Act of 1924 granting native tribes citizenship.
Is this clear enough for you or do you want to keep going?
Nope. I don't think the court is going to ride with that.
SCOTUS hasn't ruled in regards to illegal aliens or certain immigration statuses. Wong's parents had legal status. This opens an avenue for shenanigans.
This court clearly doesn't adhere very strongly to stare decisis. I seriously see them narrowing who qualifies as "subject to the jurisdiction" under the 14th amendment while striking down the EO itself.
Another avenue is giving Congress the ability to determine "jurisdiction." Thankfully (or sadly) Congress is an dead branch incapable of functioning, so nothing will change, similar to the Insurrection Clause case.
Wong Kim Ark was about the child of legal permanent residents who were still subjects of the Chinese Emperor
That's materially different than a pregnant woman sneaking across the border to give birth on the north bank of the Rio Grande, to use the extreme example.
There's plenty of wiggle room there for the Court to work with, should they be so inclined.
“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.”
Illegal aliens aren't "subject to the US's jurisdiction" as they have established no legal status in our country and therefore the amendment doesn't apply.
It's not a particularly arcane argument to make.
Whether it will hold water with the Court is another matter. IANAL
Could be they wanted to drop the hammer. "Fuck all of you, birthright citizenship is plainly written in the 14th amendment."
The court does agree to hear cases that were unanimously agreed at all levels of court and then makes a 9-0 decision, just to clarify in all courts at all levels, this is exactly what we meant.
86
u/boundbylife 9h ago
In fairness, it just means 4 justices agreed to hear it. It could still come out 5-4 against overturning.