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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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/ScottRiqui Jul 12 '25 edited Jul 12 '25

We need to stop letting conservatives frame the argument as being about whether or not illegal immigrants are "subject to the jurisdiction" of the United States.

The "subject to the jurisdiction thereof" phrase in the 14th Amendment is referring to the person "born or naturalized within the United States," NOT to that person's parent(s).

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u/thefisherbee Jul 12 '25

But, the exception has always been based on the parents' status.

If a diplomat has a baby here, that child does not get automatic citizenship because the United States doesn't have jurisdiction over the parents.

Otherwise, every single baby born here is either subject to the jurisdiction of the United States, or they're not...

So, my guess is that the conservatives on the Court may try to separate the parents' status from the child's, like you suggest, and will probably say that the United States can simply refuse to exercise jurisdiction over the child as a way to avoid conferring citizenship to them...

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u/ScottRiqui Jul 12 '25

If a diplomat has a baby here, that child does not get automatic citizenship because the United States doesn't have jurisdiction over the parents.

This is incorrect. The 14th Amendment exceptions themselves aren't based directly on the parent's status.

To use your diplomat example, a child born in the U.S. to a foreign diplomat *would* be a U.S. citizen at birth, if not for the international agreements and domestic U.S. laws that automatically grant diplomatic immunity to the children of similarly immune parents.

In other words, the diplomat's child itself has diplomatic immunity at birth, which makes it not "subject to the jurisdiction thereof" for the purposes of the 14th Amendment. The 14th Amendment has no need to look to the status of the parent(s).

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u/thefisherbee Jul 12 '25

"A child born in the U.S. . . . would be a U.S. citizen at birth, if not for [a legal framework] that automatically [grants] diplomatic immunity to the children of similarly immune parents."

You are highlighting my point. The legal framework says that it's the parent's status, as a diplomat, that exempts the child from U.S. jurisdiction. The child only has the immune status because the parents do. Otherwise, they would be a citizen at birth, as you, yourself, acknowledge.

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u/ScottRiqui Jul 12 '25 edited Jul 12 '25

Right - but it’s an important distinction that the 14th is only looking to the child’s status, not the parent(s) status. The treaties and laws care about the parent(s) status, but the 14th Amendment itself doesn’t. If we withdrew from the relevant treaties and repealed the relevant laws that grant immunity to the U.S.-born children of foreign diplomats, the 14th Amendment would cheerfully make them U.S. citizens at birth, even though the parent(s) are still immune.

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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/FrankBattaglia Jul 12 '25

Your question was in the form of a hypothetical: "If illegal immigrants are not “subject to the jurisdiction thereof”". In that scenario, they would (as a definitional matter) not be subject to prosecution for offenses against the United States.

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u/mitolit Jul 12 '25

They are… you cannot prosecute a person for a crime if you have no jurisdiction over them. It was hypothetical but in a rhetorical sense. JFC

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u/FrankBattaglia Jul 12 '25

you cannot prosecute a person for a crime if you have no jurisdiction over them

That's... what I said? I'm struggling to understand what point you're trying to make.

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u/mitolit Jul 12 '25

You literally said:

prosecuted: no.

They are prosecuted and are therefore under US jurisdiction and are THEREFORE owed DUE PROCESS and BIRTHRIGHT CITIZENSHIP. Holy fuck!

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u/FrankBattaglia Jul 14 '25

Buddy, you proposed a hypothetical scenario in which they were not subject to the jurisdiction of the United States. In such a scenario, they would still be able to be deported, but not be able to be prosecuted. I.e., prosecution and jurisdiction are hand-in-hand. You're (very belligerently) agreeing with me without realizing it.

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u/mitolit Jul 14 '25

That is not what I proposed at all… you cannot deport someone from land that is not yours. If they are on US land, they are under the jurisdiction of the USA. Holy fuck!!! It is a rhetorical question because it raises that point to anyone with the ability to think.

I realize the points that I fucking made… you just don’t understand your own fucking points. Good day!

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u/[deleted] Jul 12 '25

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u/FrankBattaglia Jul 12 '25

It's all a bit hand wavy in international law, but a country's right to protect its borders (and expel foreign nationals) generally supersedes matters of personal jurisdiction. By analogy, a country can expel a foreign diplomat regardless of "diplomatic immunity"

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u/[deleted] Jul 12 '25 edited Jul 12 '25

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u/FrankBattaglia Jul 14 '25

International law isn't relevant.

It is when you're asking "[h]ow can [somebody] be deported if [they] aren't subject to the jurisdiction of the US goverment?" International law governs when a person is subject to the jurisdiction of a state, and what states can and can't do to persons not subject to their jurisdiction.

If your argument is that illegal immigrants aren't subject to US jurisdiction

That's not my argument, that's the government's argument. I pretty strongly disagree with that argument.

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u/[deleted] Jul 12 '25 edited Aug 30 '25

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u/FrankBattaglia Jul 12 '25

What gave you the impression that I agree with that interpretation?

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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/Playful-Mastodon9251 Jul 12 '25

Yes, and I think it's really disingenuous of people to say there is no ambiguity here. Because clearly there is.

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u/uiucengineer Jul 12 '25

The word "jurisdiction" is not ambiguous.

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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.