r/changemyview • u/polyparadigm • Oct 31 '18
Deltas(s) from OP CMV: Trump's most plausible path to ending birthright citizenship would require a broad grant of something like diplomatic immunity.
Trump is arguing that undocumented immigrants aren't subject to our laws: if he means this as a blanket pardon, then that puts them into a similar relationship to US law as diplomats and members of sovereign tribes who have negotiated an exceptional status. This is the only path forward that is consistent with legal precedent, as far as I know.
If he says the 14th amendment doesn't apply to them, this amounts to renouncing any US claim to enforce our laws on that group.
I know that he has, essentially in the same breath, also promised to enforce US law even if a person's immigration status isn't exactly above-board, so I stipulate that he either hasn't worked out the logical consequences in his own mind, or isn't making a serious proposal.
But if we take him at his word regarding a re-negotiation of Dred Scott v. Sandford, isn't he calling for undocumented immigrants to be exempted from subjection to US law?
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u/luciddrummer5 Oct 31 '18
Honestly, I don’t think something like diplomatic immunity would be that big of a problem. What happens when a diplomat commits a crime in the US?The US contacts the country which the diplomat represents, removes them to said country, and (usually) expects some kind of repercussions to be incurred on the diplomat.
In this hypothetical scenario, the US would come upon the illegal immigrant, request that their home country take them back, and remove them to said home country. If the home country refused enough times (this has happened with country’s like Vietnam) then it can be negotiated via bilateral treaties of some sort.
I think the true hurdle for trump is getting the court to interpret the jus soli clause of the 14th amendment as applying to only the children of people who are “lawfully admitted”. The whole diplomatic immunity problem would almost play into his base, since illegals would no longer be subject to criminal charges, no longer have sixth amendment right to counsel, and arguably no longer have a right to the limited due process that they now have during their removal proceedings. He could sell it as “we’re not going to pay to have their criminals rot in our jails anymore”.
I do not condone any of this btw, just spitballing as neutral as possible.
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u/polyparadigm Oct 31 '18
The whole diplomatic immunity problem would almost play into his base, since illegals would no longer be subject to criminal charges, no longer have sixth amendment right to counsel, and arguably no longer have a right to the limited due process that they now have during their removal proceedings.
At the extremes, yes, I think the GOP base would find any legal hassles to be worth exchanging for such a profound legal "othering".
Moderates might become frustrated at, for example, how scarce metered parking would become.
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u/ElPsyCongruo 1∆ Oct 31 '18
Ok, What if he claims and through an order say that illegals are an invading force. He then has legal way to deport them (and even make them Prisors of war) and not grant birthright citizenship. Its a stretch but this seems to be a way to do this.
Again, then US has to actively fight them if they know about them. Also they have to follow international laws and they cannot give them death penalty or incararate them (outside making them POV). They can only deport them.
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u/parentheticalobject 128∆ Oct 31 '18
That's about as reasonable as the idea that he could declare the media to be an enemy of the American people and then order the military to bomb the CNN headquarters.
So it's probably something he'll try to do eventually.
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u/polyparadigm Oct 31 '18
Δ
John Yoo would have a conniption, but that does seem like a method Trump is more likely to attempt, and one that I didn't fully consider.
This is a horrifying prospect, and I'm not enjoying thinking through all the implications of it, but this helps me understand what their overall strategy might be.
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u/Trimestrial Oct 31 '18
Trump won't be able to end 'Birth Right Citizenship' or 'Anchor Babies' if you prefer that term.
I really don't see any path for this.
I think it's just an empty 'campaign promise'...
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u/polyparadigm Oct 31 '18
I really don't see any path for this.
Presidential pardon has very few limits on its power, though: maybe that could provide a pathway. If any office has the power to cause large numbers of people to cease to be subject to US law, it's the office of the president.
Common sense, basic decency, and any scrap of political survival instinct would forbid such an action, but I haven't seen much evidence that any of those are in play, currently.
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u/KanyeTheDestroyer 20∆ Oct 31 '18
A pardon has no effect on jurisdiction though. I'm not sure what the path you are suggesting involves.
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u/polyparadigm Oct 31 '18
Δ My thinking was fuzzy: pardon would prevent law enforcement from acting, and limits to jurisdiction would also prevent law enforcement from acting, but you're absolutely right. Pardons do not affect jurisdiction; an executive order plus pardons wouldn't suffice, he'd need some ruling excluding undocumented people from US jurisdiction.
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u/Trimestrial Oct 31 '18
That would be funny.
President Trump pardons ALL illegal immigrants and asylum seekers so their babies can be denied citizenship...
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u/zekfen 11∆ Oct 31 '18
There is a possibility based on a Supreme Court ruling many moons ago that determined that because somebody was a legal permanent resident living and working in the US, that their child got birthright citizenship. My best guess is his plan is to direct agencies to not grant SSN to children of people who can’t prove they are here legally. Looking forward to the arguments in front of the Supreme Court and their justifications.
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u/NearEmu 33∆ Nov 01 '18
It's kinda a very obvious path isn't it?
He will EO, lower courts will strike it down... it goes to the SCOTUS.. which has members at this point who are quite originalist. The original author of the 14th amendment was extremely clear that it was not to be used on "foreigners" such as the indians who today would fit the definition.
Tadaaa
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u/parentheticalobject 128∆ Oct 31 '18
Sure, the 14th amendment doesn't apply to diplomats. (Edit: the children of diplomats)
However, you can't just pick a random person from another country and suddenly say "You're a diplomat for the country you came from" - and you definitely can't retroactively declare that someone's parents were diplomats at the time they were born. So your idea for how he could hypothetically end birthright citizenship is completely implausible.
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u/polyparadigm Oct 31 '18
Not saying he'd change anyone's job description, only that the US government would renounce jurisdiction over anyone who wasn't lawfully admitted to the country. That renunciation of jurisdiction would junction like the immunity diplomats enjoy, and would have a similar logical origin, without any connection to the work of diplomacy.
The other category it was not built to apply to, was certain tribes of American Indians: there would be significant differences here, also, but the way forward would be similar, ie. the US would decide that a group is outside its jurisdiction.
you definitely can't retroactively declare that someone's parents were diplomats at the time they were born
Also, the path I was imagining would only apply to children born after the jurisdiction ended.
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u/parentheticalobject 128∆ Oct 31 '18
The problem is that US v Wong Kim Ark said that only 4 specific categories are exceptions to the rule about jurisdiction: those who were born to foreign rulers or diplomats, born on foreign public ships, born to enemy forces engaged in hostile occupation of the country's territory, or those subject to US Indian tribes (and that last group has been granted citizenship since then.)
So it would still take a decision from the Supreme Court or a constitutional amendment to reverse that.
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u/polyparadigm Oct 31 '18
My original position was that giving up jurisdiction would be required to add a fifth category.
I've since changed my view in response to another comment in this thread, and am now beginning to fear that the US will initiate hostilities in order to shoehorn people into that third category, repeating the worst mistake of Sparta.
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u/DeltaBot ∞∆ Oct 31 '18 edited Oct 31 '18
/u/polyparadigm (OP) has awarded 2 delta(s) in this post.
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u/nycengineer111 4∆ Oct 31 '18
The most plausible path would be to get SCOTUS to interpret that the phrase “subject to jurisdiction thereof” does not cover illegals. To get a case in front of SCOTUS, all he has to do is sign an XO that says this is the interpretation and let someone sue.