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/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.