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PaperclipPerfector  9mo ago (text post)   40120 thread views

Culture War Roundup for the week of February 24, 2025

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To raise a question for the "Pro-Birthright Citizenship" camp: Why aren't the children of lower-ranked diplomatic personnel covered?

The standard answer would be that diplomatic immunity means that a person isn't subject to US law. That problem with this is that most consulate employees do NOT get diplomatic immunity.

The Canadian Ambassador (and his immediate family) has diplomatic immunity; he can start bar fights safe in the knowledge that he's immune to prosecution, not matter how blatantly he breaks the rules. But the Canadian Ambassador is just one guy. His staff DO NOT get personal immunity; they only get immunity when it comes to official acts. And their spouses don't even get that protection.

So, let's imagine that a Canadian Consulate has a computer guy to help the Consulate with Tech Support. This computer guy is married and his wife (also a Canadian Citizen) lives with him in the US. They have a child in the US hospital. This child gets no diplomatic immunity and is born to a woman who has no diplomatic immunity and a father who's mostly not entitled to diplomatic immunity except as it relates to his work.

(Caveat: It's very probable that US Prosecutors would choose not to prosecute minor crimes, and would only move forward with major crimes given the approval of the Canadian Government, but if we're talking about constitutional requirements 'Probably would choose not to do that' != 'Does not have the authority to do that.')

There are all kinds of reasons why the child wouldn't, in practice, get a US passport. But if the claim is that the US government is required to treat the children of all persons subject to the US jurisdiction as US Citizens, then I'd expect that the large majority of the children of consulate staff would be US Citizens, which seems to be obviously not the intent of the text.

My understanding is the children of lower ranked diplomatic personnel are covered. Their children do get birthright citizenship. Here is a CIS article from 2024 complaining about the practice:

The differences between OFM’s blue list and white list are rooted in international practices and law, codified in the Vienna conventions on diplomatic and consular protections.

Under the Vienna conventions, “blue-list” diplomats, as direct representatives of their foreign governments, receive the highest privileges and immunities in the host country; in particular, they are shielded from arrest. “White-list” administrative staff and consular officials also enjoy considerable privileges and immunities, but have fewer arrest protections.

So, when it comes to matters of diplomat babies born in our country, State Department applies an expansive—and unjustified—interpretation of the 14th Amendment’s jus soli citizenship clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Thus, according to the State Department, blue-list babies, born in the U.S. to parents with greater privilege and immunities are not “subject to the jurisdiction,” of this country and therefore not automatically American citizens. But somehow white-list offspring, with comparatively less arrest protection, are “subject to the jurisdiction” and the babies are entitled to a U.S. passport.

Maybe it shouldn't work that way, the article I linked certainly argues in that direction, but it seems current practice is otherwise.

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