philbo wrote: ↑Wed Oct 31, 2018 9:33 pm
TXHawk wrote: ↑Wed Oct 31, 2018 12:00 amI am not sure how name calling of The President bolsters your case but civil discourse is an altogether different topic. So to the topic at hand. The 14th Amendment does not establish in Constitutional verbiage birthright citizenship nor was it intended to. The only Supreme Court Ruling on the matter I am aware of is Elk vs Wilkins circa 1884 which clearly affirmed the status of the parents did in fact determine the citizenship or eligibility of the child.
Elk v. Wilkens is not the only case dealing with this issue, nor is your case as on point as your conclusion states.
The
Elk case dealt specifically with native americans present within the US borders in the 19th century. Elk brought suit stating that he should be granted the privilege of citizenship based on the 14th amendment and his being born within the US. The holding in this case did not rest on who Elks parents were, but rather the fact that he had been born into a tribe that was recognized as an alien nation by the US. Congress that previously concluded that the "Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states"; but "they were alien nations, distinct political communities", with whom the United States dealt with through treaties and acts of Congress.
Elk v. Wilkins, 112 U.S. 94 Thus, the members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. The ruling in Elk supported the previous Civil Rights Act of 1866 which specifically stated "
all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Again, the ruling in
Elk relied on the earlier Civil Rights Act to uphold it finding, not the status of Elks parents. Elk remained law in it's application to Native Americans until it was overturned by the Indian Citizenship Act of 1924.
TXHawk wrote: ↑Wed Oct 31, 2018 12:00 amKeeping in mind when the 14th amendment was passed there was no such thing as an illegal immigrant established by legal language in the Federal Statutes.
I agree that it did not exist as a legal term in the 19th century, but all the hall marks of racism, prejudice, nationalism and xenophobia directed against present day illegal immigrants were being levied against the immigrants of their times and justified to deny them the right to vote. Political Parties thrived on fear of immigrants, especially those from Ireland and China. This is best reserved for a separate discussion, but fear and paranoia of immigrants did play a part in 19th century law, as much as it does today.
The cases directly related to the concept of
jus soli grew out a series of appellate cases that was eventually decided by SCOTUS in
United States v. Wong Kim Ark in 1889. These cases directly commented on the status of parents as related to birthright citizenship, not
Elk. as you previously concluded.
The anti-immigrant attitude towards Chinese immigrants in the 19th and 20th century can not be understated. This hostility towards immigrants of Asian descent was codified in the Chinese Exclusion Act of 1882 which severely restricted the rights of Chinese immigrants to enter the country, and made Chinese immigrants permanent aliens by excluding them from obtaining US citizenship.
The question of whether the Citizenship Clause of the 14th Amendment applied to persons born in the United States to Chinese immigrants first came before the courts in an 1884 case, In re Look Tin Sing. Mr. Sing was born in California in 1870 to Chinese immigrants who were not US citizens. As an adult Look Tin Sing was barred from rentry to the US in California because he did not have the documentation required for immigrants. Look's case was taken to the appeals court in 1884. After inviting comment from all lawyers, the judges focused on the meaning of the
subject to the jurisdiction thereof phrase of the Citizenship Clause, and subsequently held that Look was indeed subject to U.S. jurisdiction at the time of his birth
despite the alien status of his parents, and on this basis ordered U.S. officials to recognize Look as a citizen and allow him to enter the United States. This case was not appealed. A similar conclusion was reached by the federal circuit court for Oregon in the 1888 cases of
Ex parte Chin King and
Ex parte Chan San Hee. In an 1892 case,
Gee Fook Sing v. U.S., the federal appeals court in California (relying on the above cases) concluded that a Chinese man
would have been recognized as a United States citizen if he could have presented satisfactory evidence that he had in fact been born in the U.S. None of these cases were appealed to SCOTUS, but each directly dealt with Birthright Citizenship under the 14th amendment.
The case that is directly on point, and of which you presume to be ignorant of, followed the fact patterns of the above cases and was heard by SCOTUS in
United States v. Wong Kim Ark 1898. In a 6–2 decision the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that "
the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth."
TXHawk wrote: ↑Wed Oct 31, 2018 12:00 am Senator Jacob Howard clearly spelled out the intent of the 14th Amendment in 1866, which was to define citizenship. He stated:
"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."
While Howard did state the above it has been hashed to pieces by proponents on both sides without fully answering the question.
"Is that a list of three different categories (foreigners, aliens, and people from the families of ambassadors and ministers), in which case all kids of foreigners and aliens would be excluded from birthright citizenship? Or is “aliens” used simply as a synonym for “foreigners” and meant to be read in apposition, in which case the exclusion is limited to the families of ambassadors and foreign ministers? (“Foreigners—that is, aliens—who belong to the families . . .” For a very good discussion of BOTH sides of this issue, read here:
https://www.nationalreview.com/2018/10/ ... quirement/
But back to the original point.... if tRump believes he can legally upend the 14th amendment, federal law, and the previous holdings of SCOTUS with an executive order, he doesn't understand what he is talking about. A law passed by congress, and all the appeals that would necessarily follow, may lead to an opinion different from the holding in
Wong, but not an executive order by itself.
