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A few weeks ago, Trump signed an executive order attempting to end birthright citizenship; it is currently working its way through the courts. Some users here claimed that the 14th amendment "obviously" implies birthright citizenship. I disagree, but wanted to take the time for a long from explanation. First, the relevant text:
The question, now, is who is subject to jurisdiction. It cant just be everyone, because then why would they write it, and besides there are known exceptions made on this basis, notably foreign diplomats, invading armies, and (formerly) indians. Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?
The common answer seems to be that, since they control the territory, they have the jurisdiction rather than the US. But does the US accept that it doesnt have jurisdiction? No. After the invader is expelled, they likely have the right collect the outstanding tax from the time they were unable to collect. Crimes under US law that occured during that time can also be prosecuted (though it may be an extenuating circumstance where relevant).
Now, you might try to solve this by requiring defacto jurisdiction. The problem is that you then have to explain how the defacto failure to immediately reoccupy territory is different from the defacto failure to immediately apprehend any criminal whatsoever. This sounds quite weird and not like something they would have meant, and also every illegal immigrant is a fugitive criminal, because he violates immigration law. And it also seems that the invasion exception applies to the invaders, rather than every non-citizen in the territory.
A more promising approach might be to notice that the way the government treats illegal immigrants is a lot like how it treats enemy soldiers: Where safely possible, they are caught alive. They can then be prosecuted for any crimes committed in the US (unless responsibility goes up the command chain), and are eventually sent back home (when there is no danger that this will help the enemy anymore). This suggests that jurisdiction applies to them in a similar way, and reasoning for an exemption is likely to transfer. Indeed, one of the simplest descriptions of an invasion is "People coming into the country that the government doesnt want to". Subjecting people to jurisdiction requires activity of the government, and it seems quite sensible that someone refused entry is also refused jurisdiction. I think thats more plausible than such a refusal requiring jurisdiction, but even if you disagree, its at least a binary choice rather than having to find some complicated new distinction.
Is this a motivated reading? While it has some complexity to it, I dont see a way to accommodate the invasion exception without that. I think this is the most plausible way to resolve that. A reading which doesnt make the invasion exception may also be reasonable, depending on judicial philosophy, but if thats what the people calling it "obvious" meant, they should indicate that theyre defending something other than the status quo. In conclusion, I think children of illegal immigrants do not necessarily have citizenship, those of temporary residents (also targeted in the EO) do.
...is what I would have written, if I didnt remember that the US actually claims universal jurisdiction for some of its laws. This doesnt make everyone a US citizen, because there is the territory requirement in the text, but it potentially outflanks the exceptions, and under my above reading all of them would be invalid. Admittedly I dont think SCOTUS will take this line seriously - theyre too practical for that, and if they just really want to keep children of illegals theres plenty of bad arguments to use that sound more normal. And actually, theres a wrinkle in the wrinkle, because one of the laws with universal jurisdiction was passed before the 14th ammendment, and so actually maybe you should make the traditional exceptions work even under universal jurisdiction (depending on judicial philosophy). I think the universal reading of that law is bullshit, but it has precedent.
EDIT: Since noone seems to take into account the last paragraph: My final conclusion is that all the exceptions are gone.
IMO, not a lawyer or an expert:
From a textualist, or originalist, or stare decisis perspective, birthright citizenship does apply to children of undocumented immigrants born in the United States. Someone on twitter had a good zinger - if the child was being abused by their illegal immigrant parents, would the courts do anything about that? Well, they would. And, since they would, the children are 'subject to the jurisdiction' of the United States. Exceptions to the "subject to the jurisdiction" clause are things like diplomatic immunity - where, in fact, the court wouldn't exercise jurisdiction over the child. More generally, even if you bought the arguments that the clause somehow excluded the parents, nothing would transfer that status to the children. (This is my speculation, not copying from people who would know better, so more likely to be wrong) - In addition to that, illegal immigrants are regularly charged with crimes under state and federal law. Which, I would think, means they are 'subject to the jurisdiction'? The United States is not, in fact, currently treating them like you suggest we might treat an enemy army. We could, in theory, but we aren't.
However, on issues of sufficient importance, the Supreme Court sometimes ... changes its mind. Or, uh, realizes past precedent was wrongly decided, purely by neutral analysis of the law. This is good. It's good that an independent body of smart elites who effectively choose themselves and genuinely care about the law has some amount of check on democracy and procedure. It's good (or at least, I think it's good, and most people like the results) that the commerce clause allows the federal government to regulate more, as technology and the economy grew in scale and complexity. If birthright citizenship really is that bad, if it's strategically important to the country's future that it be overturned, the weight of literal meaning and precedent maybe shouldn't bind us. And of course, as is tradition everyone even adjacent to the legal field will have to pretend this is really a debate about what people in the 1800s thought 'jurisdiction' meant. You don't have to though.
Of course, we also "do something" about invaders. We also prosecute animal cruelty, that doesnt mean the animals are subject to our jurisdiction. And besides, all sorts of strange things can happen when crimes are downstream of other crimes.
Like, the entire problem here is that immigration restrictions have created a novel situation not anticipated by the original legislators. Something about this is going to be weird, no matter how you resolve it. So you cant have the One Zinger to rule them all.
Youre introducing a new variable here without saying how its set. Thats not particularly an argument for anything - "You cant definitely disprove X therefore its true" doesnt work. You still need to explain that data with that new hypothesis - so, how is the childrens status actually determined, such that the invasion exception holds?
Im well aware. I write this because I think its valuable to show people what the autismo mode actually looks like.
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