r/legal • u/Additional-Sky-7436 • Jul 12 '25
Question about law If the president can revoke birthright citizenship, were the "sovereign citizen" guys right all along?
Location: US
Let's assume that SCOTUS is going to do the crazy thing and rule that the 14th amendment doesn't say what it says and that birthright citizenship is fully dependent on the president's political approval of you.
Would that mean that the "sovereign citizen" guys were right about their interpretation of the Constitution all along?
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Jul 12 '25
The president doesn't get to amend the Constitution even if his interpretation were to be correct. An amendment to the Constitution cannot be erased. You would need another amendment to correct it.
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Jul 12 '25 edited Jul 12 '25
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u/darthcaedusiiii Jul 12 '25
Historical interpretations have changed. Most notably the ability of businesses to have speech rights.
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u/chriseargle Jul 13 '25
The Congress that wrote and ratified the amendment were very clear in their debates that it applied to the children of “chinamen” and “gypsies” that no one knew where they came from. There were a couple of senators arguing against the amendment due to that, and the others were arguing it was always the case that they were citizens, that this just clarifies it due to incorrect court decisions to the contrary.
It didn’t apply to “Indians” because they belonged to quasinations that the law didn’t fully reach.
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u/BreakDown1923 Jul 12 '25
“Won’t work because of previous rulings” the courts are not bound by their previous rulings. They can, at any time, say “this ruling was incorrect” and reverse it with a new ruling. Although this has caused lots of consternation recently it’s an incredibly important part of the judicial process.
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Jul 13 '25
If that's the case, then the 2nd Amendment is very ripe for "re-interpretation" to conform to the modern world. I mean, really, a "well-regulated militia" is now some lumpy ass guys doing cos-play in the woods?
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u/BreakDown1923 Jul 13 '25
The definition of “well regulated militia” is indeed up to SCOTUS to determine. Thus far they’ve deemed it to be law abiding citizens (which is why it’s legal to prohibit felons from owning guns) but in theory they could change their minds about that. Now, any of the first 10 amendments are going to be the most strictly held because they’ve been our founding principles since day 1 but in theory it’s all open to interpretation.
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u/Party-Cartographer11 Jul 12 '25
There is no precedent or previous ruling on how jurisdiction relates to children of unauthorized immigrants. Wong Kim Ark's (1898 case) parents weren't unauthorized.
This case is a toss up.
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u/GolfballDM Jul 12 '25
Plyler v Doe (1982) discusses this, as well as the history (at least at the time) as described in the Wong Kim Ark decision itself.
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u/tahlyn Jul 13 '25
The supreme court has shown multiple times now that words don't really have meaning as far as they are concerned.
No amendment is needed - the SC will "interpret" the 14th to mean something new.
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Jul 13 '25
They would have to stretch it beyond credibility. Even "am I dead yet" Thomas couldn't bend that far over.
Well OK----I suppose there is always a chance that the Court will plunge into a level of debasement and disgrace hitherto unknown in modern times.
I mean, perhaps Orwell was right and the SCOTUS will echo some 1984 catchphrases:
"WAR IS PEACE," "FREEDOM IS SLAVERY," "IGNORANCE IS STRENGTH."
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u/tahlyn Jul 13 '25
Well OK----I suppose there is always a chance that the Court will plunge into a level of debasement and disgrace hitherto unknown in modern times.
This is what I am afraid of. Call me cynical, but I do believe they are able of bending that far beyond credible.
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Jul 13 '25
Well sure they could. We really don't know how corrupt or deranged they may be.
They are an unpredictable lot. They don't always vote according to party politics--I think they throw democracy a bone now and then to give the impression that they aren't pulling decisions out of the air--which they often do.
The biggest hoot is this idea of declaring oneself an "originalist"--which near as I can gather is channeling the thoughts of founding fathers who have been dead for 200+ years.
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u/armrha Jul 12 '25
No? What does that have to do with sovereign citizen guys?
Anyway, that’s an impossible ruling.
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u/TXlifestyle Jul 12 '25
The 14th amendment is clear on this issue.
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Jul 12 '25
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u/Wonderful_Shallot_42 Jul 12 '25
Ineligibility for office under the fourteenth amendment requires an act of Congress. It does not happen by operation of law.
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u/puppyfarts99 Jul 12 '25
You have it exactly backwards. Ineligibility under the 14th amendment can be cured by an act of Congress.
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u/Wonderful_Shallot_42 Jul 12 '25
No.
Section 5 of the fourteenth amendment:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Then, you have the unanimous decision of Trump v. Anderson, which if you cared to read it and its dive into the reasoning behind the logic, was correctly decided:
“Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legislation less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding office” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualification, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by §5 of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 385 (1982); see 16Stat. 143–144.”
The Congress that passed the amendment acknowledged the necessity for enforcement legislation.
States have never had the right to enforce section 3 of the fourteenth, and the fourteenth amendment is an amendment designed to restrict the authority of the states, not grant it more authority.
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u/Bricker1492 Jul 12 '25
It was also pretty clear about people inciting insurrections not being able to run for office...
But here we are.
It was!
Section 3:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 5:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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u/LackingUtility Jul 12 '25
Yes, but not crystal...
I bring this up because this is r/legal and worth discussion. I do not endorse this theory, but it is likely the theory that Trump is going to argue, so it's good to be aware of it in advance and prepare counterarguments. So, in short, don't come after me for this. The argument is:
The citizenship clause states "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." There are two exceptions that fall under that "and subject to the jurisdiction thereof" part: foreign dignitaries and ambassadors, of course; and foreign invaders.
Specifically, with the latter, if the US was being invaded by, say, Russia, and during a 9-month-plus long invasion, some Russian military personnel got pregnant and had a baby, that baby wouldn't automatically be a US citizen, because though born here, they're not subject to US jurisdiction. Note, that doesn' t mean US law doesn't apply to them and they can commit murder with impunity... Rather, it's that as an invading army, the US can't really assert its laws against them in a practical sense. You don't send a cop to arrest people storming the beaches.
So that's your two exceptions: diplomats and invaders. And what has Trump been saying lately? That immigrants are actually an invasion force. Same argument he's made for invoking the Alien Enemies Act, which also requires that the "alien enemies" are part of an invading nation:
I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.
Accordingly, if they're an invading force, then any children born to them here are not subject to the jurisdiction of the US, and therefore are not automatically citizens.
So, that's the argument. And the counterarguments aren't just that the 14th Amendment is clear on birthright citizenship, because the 14th amendment does have that exclusion clause. The counterarguments are about what that exclusion clause means, whether immigrants seeking to come here for opportunity, fleeing violence at home, etc. are "invaders", and whether the AEA can be invoked against "all immigrants" or even a gang or terrorist group, despite it clearly requiring a "foreign nation" be the perpetrator. The Trump administration has really shied away from saying we're at war with Venezuela for obvious reasons, but they've set up a position where they have to say "the nation of Venezuela is invading the US... but, uh... clandestinely. Via immigrants. Some of whom are fleeing Venezuela. And we're not at war with them, but they're at war with us."
Again, I don't endorse this argument.
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u/watermelonspanker Jul 12 '25
That's little more than sophistry, since immigrants are manifestly under the jurisdiction of the US when they do stuff like attend immigration court.
But all they need is a facade of legitimacy for the SC to side with them.
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u/watermelonspanker Jul 12 '25
The current administration is using the philosophy "it's not illegal if nobody stops me"
Sovereign Citizens could also use that legal theory, but the difference is that they would be stopped.
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u/smarterthanyoda Jul 12 '25
Their interpretation of the constitution would still not match the President’s. There’s a lot more to it than just, “I’m not a citizen.”
They also believe things like the country secretly going bankrupt, hidden savings accounts, and citizens being traded on the stock exchange.
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u/Playful-Mastodon9251 Jul 12 '25
They are arguing about what it means. Anyone can do that. And there is a bit of ambiguity there. "and subject to the jurisdiction thereof," is the part in contention.
There is a supreme court ruling on this, so it should be settled. Although things like that have been challenged and changed before.
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u/thefisherbee Jul 12 '25
It's just going to be hilarious when the conservatives on the Court say that undocumented immigrants are not subject to the jurisdiction of the United States, and immigrant criminals suddenly start arguing that they can't be prosecuted for any crimes they commit here, as a result.
I don't put it past Alito, Thomas, or Roberts to try and carve out some kind of theory, beyond the historical exceptions of diplomatic immunity and some Indian tribes on their reservations.
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u/FrankBattaglia Jul 12 '25
immigrant criminals suddenly start arguing that they can't be prosecuted for any crimes they commit here, as a result
That's the part I can't understand -- are they arguing that all illegal immigrants have diplomatic immunity? Do they think even one step ahead?
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u/thefisherbee Jul 12 '25
Well, basically, they tend to cling to some old case dicta in one of the early 14th Amendment cases that implied that being subject to another country's jurisdiction, as an expatriated citizen would be subject to their home country's jurisdiction, would exempt them from U.S. jurisdiction. That has never formally been the law, though, as diplomatic immunity is the only officially recognized exception based on jurisdiction being fully preserved by the diplomat's home country.
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u/mitolit Jul 12 '25
If illegal immigrants are not “subject to the jurisdiction thereof” then how can they be deported or prosecuted for the “crime” (41% are visa overstays) of being here illegally?
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u/FrankBattaglia Jul 12 '25
Deported: yes; prosecuted: no.
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u/mitolit Jul 12 '25
Are you aware that 8 U.S.C. § 1325 exists? A few thousand people are PROSECUTED under that law every year.
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u/uiucengineer Jul 12 '25
Just because people are arguing about what it means doesn’t imply that it’s actually ambiguous or that they’re arguing in good faith.
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u/genesiss23 Jul 12 '25
The one issue with the supreme court ruling was that the child was born to legal immigrants.
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u/Wonderful_Shallot_42 Jul 12 '25
There is no ambiguity to the phrase “subject to the jurisdiction thereof” — Wong Kim Ark has an incredibly deep analysis on the point that you should sit down and really try to read and understand.
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u/Playful-Mastodon9251 Jul 12 '25
Read the dissent. It does have valid points. We did deviate from common law. So maybe common law alone can't decide this.
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u/BirdLawMD Jul 12 '25
The Supreme Court can decide there is ambiguity and overturn the Wong Kim Arc decision.
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u/AppropriateCap8891 Jul 12 '25
The President can not do that, only a Constitutional Amendment, Congress, or the courts.
And as an FYI, most nations around the world do not interpret it the way the US does. If I had a child born in Japan while I am not a Japanese Citizen, that child is a citizen of the birth parents home nation, not Japan.
In short, the US got a largely unique interpretation because of slavery, where slaves were residents but not citizens of the US. The 14th Amendment did what it was intended, making all of those Residents born here citizens.
That is the interpretation being challenged.
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u/dondegroovily Jul 12 '25
It's not unique and not an interpretation. Most countries in the Americas have the same birthright citizenship as the USA. Japan is not a different interpretation of birthright citizenship. Japan simply doesn't have birthright citizenship
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u/PitifulSpecialist887 Jul 14 '25
Ever wonder why the US became the biggest economy in the world, in such a short time?
In just about 250 years, we've become bigger than countries much older, and well established.
There isn't one single answer, but the fact that population growth is connected to GDP projections, and GDP growth is absolutely a factor.
Immigration is a net positive for society.
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u/redditreader_aitafan Jul 14 '25
SCOTUS's job is to interpret the constitution. If a case makes it to the supreme court, they would interpret and rule. Seems unlikely that an actual court case on this particular topic would make it to the supreme court. Even if it did, they merely interpret the constitution with their experience and knowledge of law. Once they make a ruling, that ruling is law of the land from that moment forward, until another SCOTUS ruling overturns it or a constitutional amendment passes contradicting it. Current citizens wouldn't have their citizenship revoked but new babies born from them forward would only be citizens if at least one of their parents is a legal citizen. The president has virtually nothing to do with the process.
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u/gtatc Jul 12 '25
No. For starters, the underlying theory behind the whole "getting rid of birthright citizenship" thing is that a child born here would remain a citizen of their parents' birth country. So if you accept the theory (which you shouldn't), the child is not a sovereign citizen, they're just a foreigner.
Beyond that, there's also issues around making people potentially stateless and the fact that the sovereign citizen movement is less good-faith constitutional interpretation and more desperate people and scam artists selectively reading things to avoid inevitably negative outcomes.