Trump’s blatantly unconstitutional immigration orderBut Imani Gandy is absolutely right:
The 14th Amendment of the US Constitution makes it achingly clear: Anyone who is born in the United States is a citizen....
The precise wording of the amendment — “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” — is fairly straightforward. Trump’s argument is that undocumented migrants and immigrants with temporary visas are not “subject to the jurisdiction” of the United States, but the case is legally absurd.
The only people inside the US nowadays who are not “subject to the jurisdiction” of the country are diplomats, as they enjoy diplomatic immunity from American law. Undocumented and temporary migrants, who can be arrested by American police and deported by American courts, are very much “subject” to American jurisdiction — which means their children would clearly be American citizens.
This is not merely my interpretation of the law, but also red-letter Supreme Court precedent. In the 1898 case US v. Wong Kim Ark, the Court ruled definitively that the 14th Amendment applies even to the children of migrants who are ineligible to be naturalized. So Trump isn’t just offering an implausible interpretation of the amendment’s text; he is ordering federal officials to ignore the law as defined by the Supreme Court and listen to him instead.
I would caution people to stop relying on the Constitution as written to have any meaning other than what the people Trump put on the Supreme Court says it means. "He can't do that" is not a useful response to the things he's going to do. The correct response is "Will the Court uphold that?"
— Imani Gandy (@angryblacklady.bsky.social) January 20, 2025 at 11:26 AM
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Modern Republicans, very much including the Federalist Society Six on the Supreme Court, subject anything that advances the interests of the Republican Party to two tests:
1. Can we do this without setting off a backlash that negates the gains for our side?Test #1 is surprisingly elastic -- even the 2022 Dobbs decision seemed like a reasonable risk to the FedSoc Six, and although it appeared at the time as if they'd miscalculated, their party now controls the entire federal government, so I guess they got away with it. As for test #2, the conservative movement clearly believes many extraordinarily dangerous things -- limitless AR-15s, vaccine denialism -- will harm only people in the lower orders, and not anyone they know or anyone who attends their children's or grandchildren's schools. So that's not much of a check on their behavior either.
2. Will this harm anyone we care about?
No one they care about will be harmed if they uphold the executive order, which reads in part:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.Now all the FedSoc lower-court judges and Supreme Court justices need is a professional-sounding argument from anyone anywhere in the right-wing legal establishment that calls this seemingly settled law into question. And here it is -- a 2018 blog post at the Heritage Foundation site ("Originally published by Fox News in 2011") titled "Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment."
Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.(That would be the same John Eastman who was indicted in Georgia and Arizona for his help in trying to overturn the results of the 2020 presidential election.)
But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”
The author of this piece is Hans von Spakovsky, who's been at this for a long time:
By 2000, Von Spakovsky had made a name for himself in a small network of conservative organizations dedicated to voter fraud and elections security. In a lengthy blogpost on the Federalist Society’s website in February 2000, he mused about mail-in voting, permanent absentee voting and the spectre of non-US citizens registering to vote. Especially concerning, wrote Von Spakovsky, were voting reforms that streamlined the voter registration process – like the National Voter Registration Act, which made it easier for voters to register while applying for a driver’s license.Von Spakovsky and Eastman are partisan hacks, which means their arguments, or arguments similar to theirs, will be treated as the work of disinterested scholars who seek nothing but pure Truth.
“All of these ‘reforms’ have increased the opportunity for election fraud,” he wrote.
Voter Integrity Project, a Virginia-based organization that Von Spakovsky advised, advocated purging voter rolls, even awarding the company responsible for erroneously scrubbing thousands of disproportionately minority voters from Florida’s rolls before the 2000 election, an honor for “innovation”.
Later, when George W Bush was elected president, Von Spakovsky – at that point a prominent blogger and activist focused on the topic of voter fraud – was hired to the voting section of the civil rights division of the Department of Justice; in 2002, he was promoted to oversee the section....
In 2005, Von Spakovsky was rewarded for his performance in the Department of Justice – with an interim appointment, by Bush, to the Federal Elections Commission, where he worked for two years.
But the Senate never confirmed his appointment. Six former justice department staff made the unprecedented decision to pen a letter to the committee on rules and administration objecting to his full appointment.
During his tenure in the voting section, they alleged, Von Spakovsky had “played a major role in the implementation of practices which injected partisan political factors into decision-making on enforcement matters and into the hiring process”.
So I'm calling it now: This case will reach the Supreme Court and the Court will rule in Trump's favor. Established law? Roe was established law. Chevron deference was established law. Sections 4(b) and 5 of the Voting Rights Act were established law. Leonard Leo's minions don't care.
