Eliminating birthright citizenship is cut and dry an attempt at unconstitutional rescindment of the 14th amendment of the constitution.
However, disagreeing about the interpretation of the constitution when it is not actually that "plainly" clear, it has been supported by precedent is not the same as ignoring the constitution. In fact, it sets up a challenge for the Court to decide and it will almost certainly find in favor of this kind of citizenship.
Many presidents, including Obama, have put forth orders and supported legislation that was ultimately found to be unconstitutional; it does not mean they were running a monarchy or whatever the left is implying.
Besides all of that, there is the danger that if Democrats try to play the 14th card against him, Trump will declare the immigrants enemy combatants. At which point they are no longer under the jurisdiction of the United States at all, and he can do more than simply deport them. The left has been out-maneuvered at every step here, it's unlikely that this is the point at which they start winning.
The text of the 14th amendment follows:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
For better or for worse, the amendment does not make any exceptions for denying citizenship to persons born of late term pregnant women who just arrived on the shores.
Marking lawful citizens as enemy combatants for simply being born in the US sounds like a very bad idea to me, and should be to you too. Why would I not be a potential enemy combatant for making this comment on hacker news right now?
"and subject to the jurisdiction thereof" could easily be read to exclude those who are born to people present unlawfully and/or in violation of their visa. I think it's pretty plausible that the Supreme Court might overturn Wong Kim Ark.
> Marking lawful citizens as enemy combatants for simply being born in the US sounds like a very bad idea to me, and should be to you too. Why would I not be a potential enemy combatant for making this comment on hacker news right now?
Welcome to how it's always been for anyone who didn't have citizenship. The "enemy combatant" concept is some tinpot dictator bullshit, but at this point it's been well established in the US and supported by both sides of the aisle, the Dems wouldn't have a leg to stand on in campaigning against it. Talking about applying it to "lawful citizens" is purely circular logic - Trump will take the position that they aren't and were never lawful citizens.
Indeed, one of the Senators (Cowan) against the amendment feared millions of invaders who settle as trespassers leading to a loss of control over immigration due to the amendment.
It is simply impossible to read the debate and argue that Congress' understanding of the amendment didn't include exactly the group people today are trying to exclude.
https://www.justfacts.com/document/1866_birthright_citizensh...
A criminal is very much "subject to the jurisdiction of" the US, far more so than an illegal immigrant who if caught will likely not be imprisoned or even tried, but simply deported.
> It is simply impossible to read the debate and argue that Congress' understanding of the amendment didn't include exactly the group people today are trying to exclude.
What Congress believed at the time is not binding on today's courts if they don't want it to be, as the history of interpretation of many other parts of the constitution shows.
Deported using......jurisdiction?
You think if they do some big crime the US is going to ignore it and do nothing but give a referral because oops no jurisdiction?
This argument doesn't work.
No, just deported. When the Navy shoots at Somali pirates they don't worry about jurisdiction. The left has been at pains to point out that illegal entry is not a crime and border patrol is not law enforcement, but that cuts both ways.
> You think if they do some big crime the US is going to ignore it and do nothing but give a referral because oops no jurisdiction?
If they do a medium-sized crime the US ignores it and just deports them, that much happens all the time already, no-one wants more people in prison.
If they do a big enough crime then I'm sure the US would find some way to charge them, but that's no different from what they do for full-on foreigners who never come anywhere near the US. E.g. if they kill a US citizen on US soil then the US would claim jurisdiction on that basis, even if the perpetrator stayed on the other side of the border the whole time.
If you were being reasonable, you might realize that short of those crimes deserving the death penalty, our country is better off just deporting. I don't want to spend $50,000/year (and up) on sequestering someone from our population, when deportation accomplishes that same result. Just make sure the deportation is successful. Send them with a crate of evidence for local prosecutors (who, in theory, should want to prosecute them... unless they really were sending them here to destablize our country with sabotage and rape).
This would remain true for me, even if it had no impact on citizenship of their children.
And I could imagine situations where it makes sense to prosecute and then deport with a suspended sentence, which keeps costs relatively low but also gives them a much bigger incentive to never come back.
Indeed, Senator Cowan feared "Gypsies" who "settle as trespassers wherever they go" and whose "cunning is of such a transcendent character that no skill can serve to correct it or punish it." He argued the amendment to make those born here citizens would prevent their removal, as a class.
He went beyond that of course. His diatribe includes floods of "Mongol race", Chinese, Australians and even cannibals.
Really, the arguments against jus soli today almost sound like they're channeling the man.
> Mr. Cowan: I am really desirous to have a legal definition of “citizenship of the United States.” What does it mean? ... Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? ... If the mere fact of being born in the country confers that right, then they will have it; and I think it will be mischievous. ...
> Mr. Conness: If my friend from Pennsylvania, who professes to know all about Gypsies and little about Chinese, knew as much of the Chinese and their habits as he professes to do of the Gypsies ... he would not be alarmed in our behalf because of the operation of the [proposed amendment] ... so far as it involves the Chinese and us. The proposition before us ... relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens.
It is very hard to look at the debates and argue it was just done for ex-slaves and has no other effect given they very clearly debate the effect.
But that's not true. Only their offspring gains US citizenship, not them.
But I suspect that isn't the limit anti-14th-amendment people's ambitions.
It is extremely common in the Americas though. I think only Colombia and a few island countries don't have birthright citizenship here. I think it is a good concept for us, the US has historically been a nation of immigrants and our country has a culture that is shaped (and IMO strengthened) by people from all over the world.
It means that even if your citizenship never gets worked out, your descendants will be handled.
Having it so extreme as to be "anyone born on the soil (except diplomat kids)" is a novelty. Not necessarily a bad one, but also not obviously what the 14th was attempting.