Re: Crumbling constitution

1

The reports are that he is going with the ideas that (1) birthright citizenship was intended (under the 14th amendment) to guarantee that children of ex-slaves were automatically citizens and (2) "persons not under the jurisdiction" of the US aren't entitled to it.


Posted by: DaveLMA | Link to this comment | 10-30-18 10:30 AM
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Moby's comment on the other thread was to the point.


Posted by: dalriata | Link to this comment | 10-30-18 10:41 AM
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I think this is all an election stunt, like the caravan, but: If Charley is right that Wong Kim Ark might be overturned, then that's it, right? That's the end.


Posted by: Walt Someguy | Link to this comment | 10-30-18 10:49 AM
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Yeah, a quick review of the Wikipedia article on the Wong Kim Ark decision says that Dave's item (2): "not under the jurisdiction of the US" is presumably operative. At least that seems the most obvious avenue of attack. And of course, I do not know anything about this compared to, say, Charlie Carp and others here.

That said, when I heard this news reported on the radio this morning, I laughed out loud. The radio said 'Trump believes he can abolish birthright citizenship by executive order', and I laughed. And laughed. And said "yeah, right." And laughed some more. (Then had a moment of thought that, you know, if the 14th Amendment is a matter of any respect among conservatives as well as liberals, the notion that Trump might be proposing to overturn the Constitution by Executive Order should be really fucking concerning.)

But it's more complicated than that, isn't it?


Posted by: parsimon | Link to this comment | 10-30-18 10:50 AM
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I've been seeing lots of people on twitter say that Trump is putting this out as bait and that we should ignore it. Now that it's a post on Unfogged, I guess we're doomed.


Posted by: peep | Link to this comment | 10-30-18 10:50 AM
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I think this is all an election stunt, like the caravan, but: If Charley is right that Wong Kim Ark might be overturned, then that's it, right? That's the end.

It's clearly an elections stunt, but everything with Trump is a stunt, except that once an idea is rattling around his brain, he escalates it.


Posted by: heebie-geebie | Link to this comment | 10-30-18 11:03 AM
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So, it seems to me that Trump issues an order telling the State Department to stop issuing passports to people born in the US whose parents were not legally here. Maybe they can think of some other executive action they can take where citizenship is in play -- security clearances, maybe? Some sort of tax ruling? All he has to do is tell the Exec branch to do it one way.

It gets litigated, the DC Circuit rules Trump in the wrong, but Thomas writes an opinion in a 4-1-4 case overturning Wong Kim Ark. And there we are: retroactive de-citizenship of all "anchor" persons, and their children.


Posted by: CharleyCarp | Link to this comment | 10-30-18 11:05 AM
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I'm so tired of reading "is this a distraction?". Palace intrigue (Javanka vs Miller vs Kelly vs whoever) is mostly a distraction, sure. This, by contrast, is a clear doubling-down declaration of policy, however it may shake out in policy or law. It doesn't have to turn into precisely what was described to be harmful.

They're already revoking citizenships, FFS.


Posted by: Minivet | Link to this comment | 10-30-18 11:07 AM
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The Atlantic had a piece from July ready to explain why attacks on the Fourteenth Amendment are way outside the constitutional mainstream. Attractive to Steves Miller and Bannon, for sure, but Justice Roberts won't overturn a precedent with more than a century's weight in a decision that would render millions of American citizens as without a state. I don't think.

But a SCOTUS decision from a newly enabled conservative Supreme Court could tell the Trump administration how to curtail birthright citizenship in a way that they would affirm--five to four, more in sorrow than in anger--as constitutional. I'm not nearly creative enough to guess what that would look like.

What bothers me more today is that the media has no solution to this political maneuver. Donald Trump calls Jonathan Swan and minutes later Axios runs a breathless item about how the White House is going to white-out an amendment to the Constitution, when they're absolutely not; then cable news programs bring on either Kellyanne Conway or the one or two legal scholars who believe there is any wiggle room in either the Senate's 1868 thinking or the Supreme Court's 1898 decision, as a balance to the host of experts who must try to patiently explain that this is a stunt; the rest of us are left to twist in the wind. Trump has hacked the media through Axios.


Posted by: Armsmasher | Link to this comment | 10-30-18 11:08 AM
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Everything with Trump is a stunt, yes, but the panic among white supremacists that their grandchildren will be out-numbered by people of color is real. Redefining 'American' is deadly serious to these people.


Posted by: CharleyCarp | Link to this comment | 10-30-18 11:08 AM
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7: You think Roberts would abstain? No way.

8: I sort of agree and don't on "doubling down." Obviously this is sincerely held conviction on Trump's part but calling Jonathan Swan isn't exactly introducing policy.


Posted by: Armsmasher | Link to this comment | 10-30-18 11:10 AM
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9: Trump has hacked the media through Axios.

And others. But it is true that Mike Allen has via Politco and done far more to advance the white supremacist agenda than his John Bircher father ever dreamed of.


Posted by: JP Stormcrow | Link to this comment | 10-30-18 11:13 AM
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7: it seems to me that Trump issues an order telling the State Department to stop issuing passports to people born in the US whose parents were not legally here

Passports? Why not social security numbers?


Posted by: parsimon | Link to this comment | 10-30-18 11:23 AM
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It is unclear to me that exact interplay between Axios and Trump (and others in the WH) on this. Here is a video of the exchange (throwing up in your mouth a little bit warning). Swan tweeted later that he was working on a story with a WH source (Miller?) and chose to prompt the president.

I hate myself for even getting into the details of how these rancid fuckheads work. In the actusal event very bad stuff will happen through some mechanism in any case. Measurably less rancid if Dems get good results. But that it about as good as it gets for while, only semi-rancid.

Lindsay the Relatively Newly-Minted Sycophant says he will introduce legislation.


Posted by: JP Stormcrow | Link to this comment | 10-30-18 11:23 AM
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Obviously this is sincerely held conviction on Trump's part but calling Jonathan Swan isn't exactly introducing policy.

Per Stormcrow the other thread, someone in the White House (Steve Miller?) may have prompted this question to Swan in the first place.


Posted by: Minivet | Link to this comment | 10-30-18 11:24 AM
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Fudge.


Posted by: Minivet | Link to this comment | 10-30-18 11:24 AM
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11.1 Concur in the judgment. One way or the other -- it'll depend on how sympathetic the plaintiff is, and how wild the facts are. If I was advising Trump, I'd tell him to maybe pick something like security clearances where Exec discretion is at its height, to get that Roberts concurrence.

If Roberts votes with the liberals, then we're just waiting for a justice to die. The supremacists are never going to back down on this point so long as they have any shot at power in any branch.


Posted by: CharleyCarp | Link to this comment | 10-30-18 11:29 AM
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14: It seems pretty clear that Axios is looking for clicks and views, no? Someone or other from Politico is now with Axios, or founded them or something.


Posted by: parsimon | Link to this comment | 10-30-18 11:37 AM
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It might help to remind conservatives that, if they can fuck with the 14th Amendment, we can fuck with the 2nd.


Posted by: Spike | Link to this comment | 10-30-18 11:39 AM
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Questions about the propriety of this story surfaced on Twitter just after the story broke.

I'm sure that Stephen Miller has been talking about revoking the 14th Amendment since he was in fourth grade. Personally I wouldn't write a story on his prompt. It is much harder to ignore when the president says he plans to do something, even when he has no power to do that something. Reporters aren't helpless, though, and they have to weigh truth along with mere facts.


Posted by: Armsmasher | Link to this comment | 10-30-18 11:39 AM
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To Trump, I'm sure that talking about this right now is exactly like touting his upcoming middle class tax cut -- which he's also planning to do with a executive order. Miller has convinced him that his inclinations wrt people of color are good politics too, so why not pump up his followers right before the election?

The complicity of the press in the whole Trump project is genuinely demoralizing. No one has to let themself be obviously played.


Posted by: CharleyCarp | Link to this comment | 10-30-18 11:48 AM
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17: "If Roberts votes with the liberals, then we're just waiting for a justice to die."

Fight for fifteen!

Merrick Garland will finally get a hearing, plus five distinguished women.


Posted by: Doug | Link to this comment | 10-30-18 11:55 AM
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||

NMM to Whitey Bulger.

|>


Posted by: Kreskin | Link to this comment | 10-30-18 12:11 PM
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This whole thing makes me so angry and sad I can hardly type. Briefly:

1)
What bothers me more today is that the media has no solution to this political maneuver. Donald Trump calls Jonathan Swan and minutes later Axios runs a breathless item about how the White House is going to white-out an amendment to the Constitution, when they're absolutely not; then cable news programs bring on either Kellyanne Conway or the one or two legal scholars who believe there is any wiggle room in either the Senate's 1868 thinking or the Supreme Court's 1898 decision, as a balance to the host of experts who must try to patiently explain that this is a stunt; the rest of us are left to twist in the wind. Trump has hacked the media through Axios.

This is exactly right, and even worse, you have almost all of the major networks tweeting links and articles this morning as though this is genuinely up for debate. The AP even published and then deleted a tweet that parroted 45's position without noting that it was untrue.

2) This proposal has been on the white supremacist/nativist wish list for YEARS. I got laughed at circa 2010 when I asked an immigration lawyer about it in a public event but even then it was clear that [some, terrible] people wanted it.

3) It's also on the list of ~70 immigration policy changes that the White House proposed to Congress near the beginning of the administration, which itself comes from a wish list from extremist immigration restrictionist/hate group CIS.

4) There is excellent evidence that birthright citizenship (and free K-12 public education) are two of the most powerful mechanisms in the US for incorporating newcomers. Second-generation Americans -- that is, the children of immigrants -- are better integrated here than in most other countries that receive immigrants.

5) Taking citizenship away from people on a large scale happened most recently in the Dominican Republic, where tens of thousands of Dominicans of Haitian descent were suddenly stripped of their citizenship (and in many cases made stateless) back in 2010 or so. It's an ugly practice with an ugly history and devastating economic, social, and health consequences.

Oh, and: Passports? Why not social security numbers?
Only US citizens have passports. Many millions of non-citizens have SSNs, because you need them to work legally in the US.


Posted by: Witt | Link to this comment | 10-30-18 12:16 PM
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24.last: Ah. I didn't know that.


Posted by: parsimon | Link to this comment | 10-30-18 12:19 PM
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Huh, just musing, though: when I got my passport, I'm pretty sure I just had to show, like, a driver's license and a couple of other (minor) forms of ID. Not a birth certificate, I don't think. Well, whatever. Just musing.


Posted by: parsimon | Link to this comment | 10-30-18 12:23 PM
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When you *first* got your passport or when you renewed? And when did you do it? Things have been getting tighter and tighter the past 10-15 years.


Posted by: Witt | Link to this comment | 10-30-18 12:40 PM
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We just got ours renewed. It wasn't bad because the post office guy was Mr. Cheerful. The Homestead part office is great for that.


Posted by: Moby Hick | Link to this comment | 10-30-18 12:43 PM
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It was expensive though.


Posted by: Moby Hick | Link to this comment | 10-30-18 12:45 PM
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Part office should be post office.


Posted by: Moby Hick | Link to this comment | 10-30-18 12:47 PM
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28 just reminded me to check to see if our passports are due to be renewed. And they are! Thanks, Moby.


Posted by: Spike | Link to this comment | 10-30-18 1:06 PM
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It's easier if you don't let them expire.


Posted by: Moby Hick | Link to this comment | 10-30-18 1:07 PM
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Which we did. Except for my son, who was getting his first.


Posted by: Moby Hick | Link to this comment | 10-30-18 1:08 PM
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33: Weren't you the one saying that you would be fighting to your last breath to save our country? Changed your mind already?


Posted by: peep | Link to this comment | 10-30-18 1:16 PM
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We were afraid that we wouldn't be able to get on an airplane with a PA state ID. Also, I want to visit Canada.


Posted by: Moby Hick | Link to this comment | 10-30-18 1:19 PM
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35: Traitor!


Posted by: peep | Link to this comment | 10-30-18 1:25 PM
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I'm coming back. I just want to get stoned and witness somebody making a medical appointment without first spending an hour trying to understand their insurance.


Posted by: Moby Hick | Link to this comment | 10-30-18 1:27 PM
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Canadian Medicare doesn't cover medical pot - yet.


Posted by: Minivet | Link to this comment | 10-30-18 1:34 PM
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37: Just wait. You'll get stoned and then forget all about the medical appointment.


Posted by: peep | Link to this comment | 10-30-18 1:34 PM
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I think this might be a rare case where republican judges wouldn't go along with republican elected officials. Yes the conservative legal apparatus is entirely hacks who will bend the constitution to match their ideological commitments or to make nakedly partisan power plays, but this isn't a purely partisan power thing (like say Bush v. Gore) and it also isn't something that the conservative legal establishment is ideologically committed to. It's very much against originalism, it's not libertarian, it doesn't help big business, and as has been pointed out it's bad for gun rights. It's not obvious to me that it gets Thomas's vote. Could very well see it 8-1 or 7-2.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 10-30-18 1:38 PM
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I took a look at Wong Kim Ark. Wong Kim Ark's parents were in the United States legally. Also, the ruling notes that the status of "not subject to the jursdiction of " a nation includes two groups under English common law:

1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien. 2. Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.

Trump's executive order will declare that the maternity ward in which an undocumented alien gives birth is in hostile occupation by an alien enemy.

The many citations to previous Chinese immigrant cases are notable mainly because of nineteenth century Romanization conventions: In State v. Ah Chew (1881), 16 Nevada 50, 58, the Supreme Court of Nevada said: "The Amendments did not confer the right of citizenship upon the Mongolian race, except such as are born within the United States."


Posted by: unimaginative | Link to this comment | 10-30-18 2:10 PM
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Finally scouting Montreal!


Posted by: CharleyCarp | Link to this comment | 10-30-18 2:47 PM
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Are you there? I wish I were at the botanical garden and... pretty much everywhere else I went last year.


Posted by: lurid keyaki | Link to this comment | 10-30-18 2:51 PM
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43 Sorry, no. It's just a dumb joke.

I've been saying for years that apparently the way for the crazy timeline we're on to be brought to a close is for Moby to move to Quebec. He's lived in placed that started with N, O, and P, and it's his failure to timely move to a place starting with Q that's fucked it all up. I suppose Qatar would serve as well.

Moby has been resisting, but his upcoming trip to Canada is a shot at sanity. Or it's just a dumb joke and we're all doomed to live out this ridiculous reality.


Posted by: CharleyCarp | Link to this comment | 10-30-18 3:25 PM
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My wife is pushing for Puerto Rico instead. (Vacation, not new home.)


Posted by: Moby Hick | Link to this comment | 10-30-18 3:29 PM
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What are some US cities that start with Q? Queens doesn't count.


Posted by: Minivet | Link to this comment | 10-30-18 3:38 PM
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There is nothing too stupid or crass or easy to check for that shit to not lie about.


Posted by: Moby Hick | Link to this comment | 10-30-18 3:39 PM
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I don't know if that is on topic.


Posted by: Moby Hick | Link to this comment | 10-30-18 3:40 PM
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"Fun" fact: 60% of all Americans living in a place starting in Q live in one of seven Quincys.


Posted by: Minivet | Link to this comment | 10-30-18 4:01 PM
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For maximum closure, shouldn't he move to a place beginning with E?


Posted by: lurid keyaki | Link to this comment | 10-30-18 4:18 PM
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Quito, Ecuador.


Posted by: CharleyCarp | Link to this comment | 10-30-18 4:25 PM
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¡Nunca me quitas!


Posted by: Opinionated Ecuador | Link to this comment | 10-30-18 4:32 PM
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My kid wants me to take out the guts of the pumpkin before he carves it. How old do they have to be before you make them take out the guts themselves?


Posted by: Spike | Link to this comment | 10-30-18 4:46 PM
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If you take the top off for them, 10. If not, 13.


Posted by: Moby Hick | Link to this comment | 10-30-18 4:57 PM
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On reflection, just the scraping is probably going to be really slow for somebody ten.


Posted by: Moby Hick | Link to this comment | 10-30-18 4:59 PM
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So, for a 12 year old I should do the cutting and make him take the goop? Or the other way around?


Posted by: Spike | Link to this comment | 10-30-18 5:01 PM
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I have no idea. We haven't even tried since my son was eight. We just put the pumpkin out.


Posted by: Moby Hick | Link to this comment | 10-30-18 5:02 PM
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There is some wisdom in that.


Posted by: Spike | Link to this comment | 10-30-18 5:02 PM
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If it stays cold, they last till Christmas that way.


Posted by: Moby Hick | Link to this comment | 10-30-18 5:04 PM
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Jammies had kind of a bonkers panic attack about carving pumpkins. He realized Sunday night that we hadn't done so and laid awake half the night. Finally he decided to buy 4 pumpkins, scrape them himself, and on Wednesday while different kids are at piano, he'll carve w the remaining kids out of the back of his truck. This is an unusual amount of anxiety even for him.


Posted by: heebie | Link to this comment | 10-30-18 5:06 PM
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Everybody deals with current events in their own way.


Posted by: Moby Hick | Link to this comment | 10-30-18 5:09 PM
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/nod. Pumpkins are orange, after all.


Posted by: DaveLMA | Link to this comment | 10-30-18 5:17 PM
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There is no way that our squirrels would allow a pumpkin to sit outside, unmolested, until December.


Posted by: Spike | Link to this comment | 10-30-18 5:19 PM
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We don't have perverted squirrels.


Posted by: Moby Hick | Link to this comment | 10-30-18 5:20 PM
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Ours just make off with the suet feeder. They are a bunch of punks.


Posted by: Spike | Link to this comment | 10-30-18 5:23 PM
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make = made


Posted by: Spike | Link to this comment | 10-30-18 5:24 PM
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Our pumpkins rot within minutes and the squirrels stole our Beto sign.


Posted by: heebie | Link to this comment | 10-30-18 5:45 PM
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Anything is a butt plug if you're brave enough.


Posted by: Opinionated Squirrel | Link to this comment | 10-30-18 5:45 PM
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Beto's base is riled up if not flared.


Posted by: heebie | Link to this comment | 10-30-18 6:00 PM
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I don't see how you could retroactively take citizenship away with out behaving totally lawlessly, you'd have to argue Congress never intended those people to be covered but then never changed the law or said anything about it for decades, and the you have to hold hearings for millions of people? As a practical matter you can't have if people are citizens or not changing every election cycle.


Posted by: Asteele | Link to this comment | 10-30-18 6:20 PM
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70: After they do it once, they don't have to worry about elections any more.


Posted by: Cyrus | Link to this comment | 10-30-18 6:33 PM
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Are you, Asteele, under the impressions that Republicans have a problem with acting lawlessly?


Posted by: Eggplant | Link to this comment | 10-30-18 6:38 PM
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Also blatantly unconstitutional but settled law for decades thanks to verbal jujitsu: civil asset forfeiture. (No, see, it's not an action against the person, the charge is against the property as the defendant, so it's fine for the process to be a joke!)


Posted by: Minivet | Link to this comment | 10-30-18 6:39 PM
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If the Republican Party actually has the tits to roll the dice on a coup, were probably best off that they try it when they are saddled with Trump in the drivers seat.


Posted by: Asteele | Link to this comment | 10-30-18 6:40 PM
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Plenty of things are blatantly unconstitutional, Gitmo for example, but they are things with substance bipartisan support. The danger is Dems go along with it, which in a non-retroactive rule change I wouldn't be shocked if a substantial number of them did.


Posted by: Asteele | Link to this comment | 10-30-18 6:43 PM
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The danger is Dems...
Me me stop you right there, you fucking moron.


Posted by: Eggplant | Link to this comment | 10-30-18 7:00 PM
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The danger isn't so much that Dems go along with it, as it is they would be powerless to stop it.


Posted by: Spike | Link to this comment | 10-30-18 7:03 PM
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If the Supreme Court decides that 'subject to the jurisdiction' in both Amd XIV and 8 USC 1401(a) does not include the children born to people illegally in the US, that's it, those people aren't citizens. I don't see how Trump can possibly make it non-retroactive.

I'd say there are 4 votes for calling Wong Kim Ark wrongly decided, and a fifth for distinguishing it because WKA's parents were legally in the US, even if they couldn't be citizens.


Posted by: CharleyCarp | Link to this comment | 10-30-18 7:05 PM
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Or do you prefer useful idiot? I don't want to be insensitive.


Posted by: Eggplant | Link to this comment | 10-30-18 7:06 PM
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Congress can give citizenship to anyone they want to, the arguement has to be that they never meant the statute to give it to them. If he's issuing an EO I assume the plan is to say: this is what "jurisdiction of", means going forward and get the court to say that definition is consistent with the constitution.


Posted by: Asteele | Link to this comment | 10-30-18 7:13 PM
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In any case if they go for it we'll see what the strategy is.


Posted by: Asteele | Link to this comment | 10-30-18 7:31 PM
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80 Sure, but since the statute tracks the language of the Constitution, Congress didn't actually give citizenship to people born here but not 'subject to the jurisdiction.' People mistakenly thought it had, because they were relying on a [what will come to be seen as a] wrong interpretation of the phrase.

If Trump wants to issue an EO, he has to direct a particular interpretation of the statutory & constitutional language. I suppose he could direct the State Department to process passport renewals without scrutiny, and only get proof of the legal status of parents for new passports.

You're right that it would be an immoral and unholy mess. But the white supremacists really are afraid, and if they have any kind of power, they'll feel like they have to play this out.

I don't think this is more than a stunt right now, but a re-elected Trump will take this on.


Posted by: CharleyCarp | Link to this comment | 10-30-18 7:40 PM
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Stephen A. Smith has a lot to answer for.


Posted by: ogged | Link to this comment | 10-30-18 9:02 PM
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What is the strength of the anti-birthright citizenship movement, anyway?


Posted by: fake accent | Link to this comment | 10-30-18 9:38 PM
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70: "I don't see how you could retroactively take citizenship away with out behaving totally lawlessly"

John Yoo is available to say this this is just as lawful as Bush-era torture policies.

"...you have to hold hearings for millions of people? "

Anhörungen sind überflüssig.


Posted by: Doug | Link to this comment | 10-30-18 11:22 PM
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This is America, speak English.


Posted by: SP | Link to this comment | 10-31-18 3:20 AM
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85. I haven't seen any Republican office-holder suggest that it would be retroactive, and a lot of Republican office-holders are against it (though some of them are opposed because they want to do it by legislation rather than EO). Either way it will go to court if it happens. In fact it might happen twice if Trump does an EO and then the GOP manages to legislate it! The fun never ends.


Posted by: DaveLMA | Link to this comment | 10-31-18 5:54 AM
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It was expensive though.

$110 per passport. That's some kind of bullshit. They should be free.


Posted by: Spike | Link to this comment | 10-31-18 8:41 AM
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87 There has to be a presumption of bad faith with all utterances of all Republican office-holders.

If the words 'subject to the jurisdiction' include people illegally here, then nothing the President or Congress can do can deprive people born here -- past present, or future -- of citizenship. If they don't, then the assumption that those people were citizens is falsified. I suppose Congress could pass a bill retroactively making people citizens who were born of parents illegally here prior to 2019 -- but (a) people afraid of Fox and the Trumpsters aren't going to vote for it and (b) Trump will veto. This is why I think a Supreme Court interpretation of the phrase takes the issue out of the control of winking and nodding Republican office-holders, even if they weren't acting in bad faith.

The bottom line is that you can never trust these people with power. Ever. Excuses that they won't do the worst possible thing ought to be viewed with suspicion.


Posted by: CharleyCarp | Link to this comment | 10-31-18 8:51 AM
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