Can he really end birthright citizenship? Isn't it up to Congress?

[question everything]

[newdeal2]

1. All of this will be litigated for a while

In the meantime, he will get to issue press releases and throw red meat to the base.

[MLAA]

2. His congress will pass whatever he wants.

[hedda_foil]

3. It's a Constitutional Amendment, so it should require another amendment to reverse.

However, it will be whatever the Supreme Court decides it is.

[Jilly_in_VA]

23. I don't think

that the Supremes can even wipe out a Constitutional Amendment. Some of you legal types correct me if I'm wrong, but I think it takes a new amendment and has to be ratified by a large number of the states (is it 2/3 or 3/4, I forget right now).

[Frank D. Lincoln]

27. I hope you're right about that. nt

[carpetbagger]

29. They wiped out the 14th A before.

Plessy v Ferguson and hundreds of other rulings in the last gilded age.

[Igel]

30. They can just interpret a phrase or two in a different way.

That's happened a lot with some SCOTUS. The law doesn't change but the interpretation does.

That can be because a court goes "originalist" or a court goes for a "living constitution."

[Orangepeel]

35. they could mis/reinterpret "subject to the jurisdiction thereof"

there is a right wing theory that noncitizens are not subject to the jurisdiction.

[wnylib]

42. Ratification requires 3/4 of the states AFTER an

amendment is passed in Congress by a 2/3 majority in both the House and the Senate.

Same process is required to repeal an amendment. The repeal must be passed by 2/3 of the House and 2/3 of the Senate, then ratified by 3/4 of the states.

The president has no power to repeal or pass an amendment by executive order.

[Blue_Tires]

4. So that means Donnie's anchor babies all have to go, right?

[rsdsharp]

14. So do naturalized citizens. The 14th Amendment also establishes that they are citizens.

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

14th Amendment, Section 1

[question everything]

19. And Musk's? how many does he have, a dozen?

[moonscape]

36. My parents were not citizens when

I was born but became one some years later. I’m 74 qnd had a passport since I was 15.

So … passport had expired a few years ago and figured I should get a new one while government still works. So just before T’giving I filled out online form before going to post office for photo and to submit.

The form asked at the time of my birth what my parents names were and if they were citizens. I said yes they were because … well, just because. I’m not paranoid but … just because. Had I been paranoid, I’d’ve been concered the new State Dept would flag me for answering no. Crazy how abnormal things are becoming … paranoia included!

The Biden Admin delivered my passport to me on Christmas Eve! - way earlier than I expected and I hadn’t even asked for expedite.

[Happy Hoosier]

5. Congress can only changebit with an Amendment.

That won’t happen.

He’s relying on his wholly owned SCOTUS to back him up.

[Peacetrain]

6. I would not think so.. because it is in the Constitution.. 14th amendment

your guess is as good as mine with the crazy in charge

[Celerity]

13. The RW SCOTUS will try and use this part:

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.

to invalidate jus soli.

https://en.wikipedia.org/wiki/Jus_soli

Jus soli, meaning 'right of soil', is the right of anyone born in the territory of a state to nationality or citizenship. Also commonly referred to as birthright citizenship in some Anglophone countries, it is a rule defining a person's nationality based on their birth in the territory of the country.

[Amishman]

25. This is exactly what they will use

And I will not be surprised at all if the SCOTUS backs the play.

This is much more plausible than I think DU assumes. Trump doesn't need a new amendment or Congress, the 14th has a wrinkle he can reinterpret to do what he wants - at least where children of undocumented parents are concerned.

[dpibel]

7. Congress plus 2/3 of the states

Assuming, of course, that the Supremes don't break with precedent and declare that "under the jurisdiction of the United States" really does mean that infants are somehow not subject to US jurisdiction by virtue of their parents' status. I would not count on this Court doing the right thing.

But if the Court does decide to go with precedent, then the only way to do away with birthright citizenship is by amending the Constitution.

[cloudbase]

11. 3/4 of the states.

A higher bar.

[dpibel]

21. Thanks

That'll teach me to trust my memory

[dsc]

16. actually the argument isn't that the infants aren't under the jurisdiction but that the parents aren't

which could wind up creating a whole new line of immunity for them. The people who didn't count at the time of that amendment were diplomats and native Americans who didn't get citizenship until the early 20th century. Diplomats have immunity from all criminal and civil laws while in the US and at the time the 14th Amendment was ratified, Native Americans were governed on reservations. It seems to me that the only way that argument can hold water is if the only punishment for a crime committed by an undocumented alien were deportation.

[Vogon_Glory]

8. I thought he needed to push through a constitutional amendment, which

needs 2/3rds majorities in the House and Senate as well as the approval of 2/3rds of the state legislatures.

[Silent Type]

9. ACLU, and other will file suits immediately, and it will take years to litigate. But in meantime, trump can say he

issued an excutive order, and the racist/bigoted trumpsters will love him.

[Wiz Imp]

10. No he can't. It's in the Constitution.

It would take a constitutional amendment to change it.

[Initech]

12. Well, look at some of the fuckheads in Congress now.

I'm talking about the MAGA Q psychos like Marjorie Shit For Brains and Anna Lunatic. They are crazy enough to do that. And fucking Fox News will be encouraging it. WTF.

[VMA131Marine]

15. The only way to end birthright citizenship

Without a constitutional amendment that would end up repealing or at least tinkering with the 14th Amendment, would be a SCOTUS ruling overturning Wong Kim Ark vs. USA. But, if that were overturned it would strip citizenship from tens of millions of people across multiple generations and leave most of them with no nationality at all. Would even this SCOTUS risk plunging the country into that kind of chaos?

Maybe!

More likely is they expand the definition of “subject to the jurisdiction thereof” to encompass children born of parents here temporarily or undocumented. It’s a slippery slope though and that would still strip citizenship from millions of current citizens.

[dpibel]

22. Court can just say no retroactivity

As a general rule, new laws, or drastically divergent interpretations of old ones, apply to the case before the court and any subsequent ones.

Declaring that old precedent is wrong doesn't change the status of those who operated under the old precedent.

[VMA131Marine]

33. Trump wants to deport people already here

The ones he calls “anchor babies.”

I don’t know how you change the interpretation of the 14A without having it apply to people already here and who are US citizens because of it. SCOTUS has to conclude that Wong Kim Ark was wrongly decided and that puts everyone here born to non-citizen parents at risk. Maybe they make the distinction between non-citizen parents who are permanent residents versus people here on visas of limited duration but that would be a drastic change and it wouldn’t be consistent with the actual language of the 14A.

[Irish_Dem]

17. ha ha ha. Left up to Congress?

Comedy gold.

[GoCubsGo]

18. No, and he can't legally do most of what he's proposing.

Not that it will stop him from trying. But, the rubes in his cult will slurp it up like it's Dom Perignon.

[Eugene]

20. As with the 2017 Muslim ban, he will defy the Constitution and then yield what ground the courts force him to.

He and his people hope for an end result with constitutional rights substantially pushed back.

[Jilly_in_VA]

24. What about

all those Russian women he allowed to stay at his or kushner's properties in FloriDUH, have their babies, and then go back to Russia during his last term? Is he forgetting them?

[GoreWon2000]

26. Birthright citizenship is in the U.S. constitution

tRump is too stupid to know this because he had his sister doing his homework.

[EarthAbides]

28. Anything he wants

He already reinstated TikTok, he can do whatever the hell he wants. The constitution means nothing....

[DemocratSinceBirth]

31. SCOTUS can ignore the plain language of the Amendment.

However I belive there aren't five members who would go there.

[VMA131Marine]

34. Not just the language of the 14A

But about 140 years of Supreme Court precedent based on Wong Kim Ark vs USA.

[DemocratSinceBirth]

37. I don't believe they will but precedent hasn't stopped them in the past.

[VMA131Marine]

39. How do you undo the precedent without

denaturalising millions of people. Trump is explicitly saying people born to certain non-citizen parents aren’t citizens. If that stands how do you make an arbitrary cut-off date for who is and who isn’t a citizen?

[DemocratSinceBirth]

40. His Executive Order would be proactive, not retroactive.

Still contradicts the spirit and letter of the 14th Amendment.

[VMA131Marine]

41. You are making a big assumption there

Trump wants to deport people already here. In his mind there are millions of “anchor babies” in the U.S. he wants to send back to their “home” countries. I don’t think he differentiates between people already here and people yet to be born.

In the end, he’s going to discover that a new Constitutional Amendment is required that modifies or repeals the 14A.

[LiberalArkie]

32. If he can't, it will be Obama's or Bidens fault. Win - Win

[Bettie]

38. At this point, I suspect that SCOTUS

will just rubber stamp anything he and the other oligarchs want.

[totodeinhere]

43. The whole idea is to get this into the federal courts.

The hope is that the maga judges on the SCOTUS will overturn birthright citizenship. But I doubt that even those so-called judges would be willing to go that far. The Constitution is pretty explicit on this topic.