By my read, this temporary injunction applies ONLY to the plaintiff states - Washington, Arizona, Illinois, and Oregon. It doesn’t stop it from being applied in the rest of the country.
Anyone who attempts to enact this will similar be struck down. This is the constitution we’re talking about, not a states thing. Anyone being told this the law now can just file for an immediate injunction to a federal court in one of these states, and that order will still apply because… constitution. Literally any federal judge can shut this down every single time.
She wouldn’t even have grounds to write an opinion on it. It’s the constitution. It would immediately get scrapped. SCROTUS can’t even say anything about it.
In the 1898 case, two justices in their dissent interpreted “subject to the jurisdiction” to mean “exclusively subject to the justification”, and thus the amendment applies only when the person being born would otherwise be stateless.
Now it’s a strange take that requires inserting at least one word, and was settled by the SC in that case the other way, but this SCOTUS doesn’t really mind overturning precedent.
I am hopeful that at least two of the conservative justices balk at effectively having to imagine stuff not written. But if they did side with Trump, what would be the remedy? Easiest path would be to pass a law codifying the current understanding, but with this congress, that isn’t happening.
Sadly SCOTUS has some wiggle room here. They get to interpret what “subject to the jurisdiction thereof” means. If a majority view that the parents having no legal standing to be on US soil and that somehow means they aren’t considered to meet that criteria… Well there they go
I do think the portion targeting people with Visas and such couldn’t even possibly stand.
Note that there were SCOTUS justices that already did this in US v. Wong Kim Ark:
The court’s dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power[8]—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority’s view, would have excluded “the children of foreigners, happening to be born to them while passing through the country”.
While the majority at that time did not hold it, we know this SCOTUS has no particular regard for precedence.
It excludes far more than diplomats, and that’s what makes this approach so dangerous.
In a “Red Dawn” situation, local police certainly can arrest members of the invading army. “Enemy Combatants” are not subject to the laws of the United States. Enemy combatants cannot be charged with crimes under US law simply for engaging in hostilities. They can be held indefinitely as POWs. They don’t have to involve the judicial system to “repatriate” them to their country of origin, rather than deporting them.
Invading enemy soldiers are not born in the United States. That’s the other important part of the sentence. I don’t think the major issue is pregnant invading soldiers. To be clear, what I meant is that if you have embassy staff with diplomatic immunity and they have kids while in the US, those children do not get birthright citizenship, because as children of diplomats, they are not subject to the jurisdiction of the United States.
That would hold either, because it would mean that ANY visitor, legal or not, is not subject to any federal laws at all. Not just constitutional…ANY. If that’s their aim, then free for all on Trump and his team.
Expecting them to be consistent in messaging from one subject to the next is an exercise in futility. They don’t even maintain consistency within the same subjects.
They don’t care about the rules or laws or Constitution one bit beyond how they can use it as a club to beat anyone that opposes them.
In 1898, some Justices argued that it excluded people that had citizenship to another jurisdiction… So it has happened, and this SCOTUS doesn’t mind overturning precedent one bit.
By my read, this temporary injunction applies ONLY to the plaintiff states - Washington, Arizona, Illinois, and Oregon. It doesn’t stop it from being applied in the rest of the country.
Here’s the judge’s order.
Anyone who attempts to enact this will similar be struck down. This is the constitution we’re talking about, not a states thing. Anyone being told this the law now can just file for an immediate injunction to a federal court in one of these states, and that order will still apply because… constitution. Literally any federal judge can shut this down every single time.
“Can” is doing a lot of heavy lifting there. What if the federal judge is Aileen Cannon?
She wouldn’t even have grounds to write an opinion on it. It’s the constitution. It would immediately get scrapped. SCROTUS can’t even say anything about it.
Here’s the thing about SCOTUS, they can say.
In the 1898 case, two justices in their dissent interpreted “subject to the jurisdiction” to mean “exclusively subject to the justification”, and thus the amendment applies only when the person being born would otherwise be stateless.
Now it’s a strange take that requires inserting at least one word, and was settled by the SC in that case the other way, but this SCOTUS doesn’t really mind overturning precedent.
I am hopeful that at least two of the conservative justices balk at effectively having to imagine stuff not written. But if they did side with Trump, what would be the remedy? Easiest path would be to pass a law codifying the current understanding, but with this congress, that isn’t happening.
You’re more optomistic than I am.
Sadly SCOTUS has some wiggle room here. They get to interpret what “subject to the jurisdiction thereof” means. If a majority view that the parents having no legal standing to be on US soil and that somehow means they aren’t considered to meet that criteria… Well there they go
I do think the portion targeting people with Visas and such couldn’t even possibly stand.
If they’re not subject to the jurisdiction of the United States, then they can’t arrest them. That language is clearly meant to exclude diplomats.
Note that there were SCOTUS justices that already did this in US v. Wong Kim Ark:
The court’s dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power[8]—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority’s view, would have excluded “the children of foreigners, happening to be born to them while passing through the country”.
While the majority at that time did not hold it, we know this SCOTUS has no particular regard for precedence.
It excludes far more than diplomats, and that’s what makes this approach so dangerous.
In a “Red Dawn” situation, local police certainly can arrest members of the invading army. “Enemy Combatants” are not subject to the laws of the United States. Enemy combatants cannot be charged with crimes under US law simply for engaging in hostilities. They can be held indefinitely as POWs. They don’t have to involve the judicial system to “repatriate” them to their country of origin, rather than deporting them.
Invading enemy soldiers are not born in the United States. That’s the other important part of the sentence. I don’t think the major issue is pregnant invading soldiers. To be clear, what I meant is that if you have embassy staff with diplomatic immunity and they have kids while in the US, those children do not get birthright citizenship, because as children of diplomats, they are not subject to the jurisdiction of the United States.
That’s because you’re using a logical, rational definition of “soldier”. Texas isn’t, and neither is Trump.
They are treating immigration as an actual invasion. They are saying that “soldiers” are coming in to the US and having kids.
They haven’t been quiet about what they are doing, but so far, we have been treating it as hyperbole. It isn’t hyperbole. They are acting on it.
That would hold either, because it would mean that ANY visitor, legal or not, is not subject to any federal laws at all. Not just constitutional…ANY. If that’s their aim, then free for all on Trump and his team.
Expecting them to be consistent in messaging from one subject to the next is an exercise in futility. They don’t even maintain consistency within the same subjects.
They don’t care about the rules or laws or Constitution one bit beyond how they can use it as a club to beat anyone that opposes them.
In 1898, some Justices argued that it excluded people that had citizenship to another jurisdiction… So it has happened, and this SCOTUS doesn’t mind overturning precedent one bit.
Never heard of this one. Link?
https://en.m.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark
The dissent is the part to look at for what I fear the SCOTUS of today will latch onto.