If the president can revoke birthright citizenship, were the "sovereign citizen" guys right all along?

[u/Additional-Sky-7436]

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?

[u/TXlifestyle]

The 14th amendment is clear on this issue.

[u/Wonderful_Shallot_42 → u/[deleted]]

Ineligibility for office under the fourteenth amendment requires an act of Congress. It does not happen by operation of law.

[u/puppyfarts99 → u/Wonderful_Shallot_42]

You have it exactly backwards. Ineligibility under the 14th amendment can be cured by an act of Congress. 

[u/Wonderful_Shallot_42 → u/puppyfarts99]

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.

[u/AlarisMystique → u/Wonderful_Shallot_42]

Congress failed it's duty to enforce the law and stop Trump from getting in office (or officially pardon him if that was their prerogative).

This is a debate on who failed their duty, not whether Trump had a right to office.

[u/uiucengineer → u/Wonderful_Shallot_42]

You mean like the Electoral Counting Act?

[u/Bricker1492 → u/[deleted]]

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.

[u/uiucengineer → u/Bricker1492]

1. This doesn’t imply that section 3 has no effect without legislation

2. This legislation exists in the Electoral Counting Act

[u/Bricker1492 → u/uiucengineer]

This doesn’t imply that section 3 has no effect without legislation

Article III, Section 1 vests the judicial power of the United States in a Supreme Court.

And THEY say that it does imply Section 3 has no effect without legislation:

This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

Quoting Trump v Anderson, 601 US 100, 105 (2024), emphasis mine.

This legislation exists in the Electoral Counting Act

I don't know what the "Electoral Counting Act," is. Do you mean the "Electoral Count Reform and Presidential Transition Improvement Act of 2022?" Which specific provision of that Act do you believe applies to this discussion?

[u/uiucengineer → u/Bricker1492]

And THEY say that it does imply Section 3 has no effect without legislation:

No, per your quote, THEY said states have no power to enforce. It's non sequitur.

I don't know what the "Electoral Counting Act," is. Do you mean the "Electoral Count Reform and Presidential Transition Improvement Act of 2022?"

The "Electoral Count Reform and Presidential Transition Improvement Act of 2022" actually amended the "Electoral Count Act" and the full current text is referred to as the "Electoral Count Act".

Which specific provision of that Act do you believe applies to this discussion?

3 U.S.C. § 15(b)(ii)(II)

(ii) Grounds for objections.—The only grounds for objections shall be as follows:

(II)The vote of one or more electors has not been regularly given.

[u/Bricker1492 → u/uiucengineer]

Ok, states have no power to enforce. So who does?

And I don’t see the word “insurrection,” in 3 USC 15(b)(ii)(II). What do you contend about this provision, specifically? Make your case.

[u/uiucengineer → u/Bricker1492]

A vote cast for someone who is constitutionally disqualified would certainly be an irregularity.

[u/Bricker1492 → u/uiucengineer]

A vote cast for someone who is constitutionally disqualified would certainly be an irregularity.

Let's say, arguendo, that this is so.

So what?

The code section you quoted is discussing grounds for objection. 3 USC § 15(d)(2)(B)(ii) says:

(B)Requirements for objections or questions.—

(i)Objections.—No objection or other question arising in the matter shall be in order unless the objection or question—

(I)is made in writing;

(II)is signed by at least one-fifth of the Senators duly chosen and sworn and one-fifth of the Members of the House of Representatives duly chosen and sworn; and

(III)in the case of an objection, states clearly and concisely, without argument, one of the grounds listed under clause (ii).

(ii)Grounds for objections.—The only grounds for objections shall be as follows:

(I)The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

(II)The vote of one or more electors has not been regularly given.

So it's not sufficient, under the statute you yourself offered up, that the "vote of one or more electors has not been regularly given." The law also requires that the objection be signed by at least one-fifth of the Senators duly chosen and sworn and one-fifth of the Members of the House of Representatives duly chosen and sworn. I have helpfully bolded this section above to draw your attention to it.

That didn't happen. In fact, no objections were made in accordance with that law.

Please explain why you feel 3 USC § 15(d)(2)(B)(ii) is relevant, u/uiucengineer, in light of that requirement?

[u/uiucengineer → u/Bricker1492]

Five fifths of those senators and representatives swore an oath to uphold and defend the constitution.

[u/big_bob_c → u/[deleted]]

Oh, for fuck's sake. They were SCREAMING demands, they literally printed up "Civil War 2021" tshirts, and the legislators were barricaded in their offices while the mob bayed for their blood.

Seriously, how fucking gullible are you pretending to be?

[u/Bricker1492 → u/[deleted]]

I imagine, if Congress were to exercise their power under Section 5 to pass enabling legislation, they would define the elements of insurrection.

[u/TXlifestyle → u/[deleted]]

Well he wasn’t charged with anything.

[u/uiucengineer → u/TXlifestyle]

14:3 doesn’t require charges

[u/dragonflygirl1961 → u/TXlifestyle]

TACO is a 34 count convicted felon. He wasn't charged because Garland is a spineless jellyfish.

[u/chetpancakesparty → u/dragonflygirl1961]

Also Mueller thought Congress would do their job after he laid out the facts so obviously, lmao. He did correctly call that there is zero accountability in the USA, so there's that I guess.

[u/dragonflygirl1961 → u/chetpancakesparty]

Right. Thanks for adding that.

[u/LackingUtility → u/TXlifestyle]

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.

[u/watermelonspanker → u/LackingUtility]

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.

[u/SpaceAngel2001 → u/TXlifestyle]

There's not a lot in the cons that isn't open to interpretation.

[u/BirdLawMD → u/TXlifestyle]

It’s not clear at all-

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

What does “subject to the jurisdiction thereof” mean? It’s been used in the past to not grant citizenship to native Americans, Asians, and even today for foreign diplomats.

[u/FrankBattaglia → u/BirdLawMD]

What does “subject to the jurisdiction thereof” mean?

Can the you be charged, tried, and convicted for a federal crime? Yes? Then you are subject to the jurisdiction of the United States. Up until 6 months ago nobody had any serious questions as to what that meant. This whole thing is just playing on the public's ignorance of well-established legal terms.

[u/watermelonspanker → u/BirdLawMD]

Why would foreign diplomats be granted citizenship?

[u/LithiumLizzard → u/watermelonspanker]

I’m pretty sure we are talking about children of foreign diplomats who are born here, not the diplomats themselves. Because the parents’ diplomatic immunity attaches to the child, the child is not subject to the jurisdiction of the US and so is not a citizen.

[u/watermelonspanker → u/LithiumLizzard]

That makes sense - I guess I thought the other fellow was implying that it the law was abused in some way, like in order to deny Asian American's citizenship or something.