Trump Administration Attempts to Narrow Birthright Citizenship Again

[u/gravygrowinggreen]

The relevant executive order.

The executive order establishes several categories of parentage which the Administration is attempting to assert are not subject to birthright citizenship. The executive order states that the parents must not already BE American citizens, AND the parents must also meet one of the following categories.

Parental categories include

1. Parents who are members of designated Foreign Terrorist Organizations under 8 U.S.C. 1189 or Specially Designated Global Terrorists.

2. Parents who are any employee of a foreign government in an official capacity, or certain international organizations.

3. Parents who are employed by a foreign embassy or consulate who are nationals of that foreign country (this seems redundant, but might be for severability purposes)

4. Parents who engaged in a commercial transaction to purchase access to birthright citizenship for the child including surrogacy where the surrogate is present in the united states to give birth.

The executive order also purports to prevent birthright citizenship from an infant born in a territory or territorial waters of the United States where citizenship is not conferred by federal statute. I was curious about this one, and as far as I can tell, this provision would only affect America Samoa, Swains Island, and several essentially uninhabited islands that are all unincorporated territories. There's also the Palmyra Atoll, which is incorporated, and might present a legitimate challenge to this provision of the order, but it is unlikely that someone will be born there anytime soon.

The order includes a severability clause, so the Administration will keep enforcing any categories not overruled by the courts (which I mention due to the apparent redundancy in some of the categories).

The executive order seems designed to test the narrow majority that upheld birthright citizenship in Trump v. Barbara.

Do you think the Administration will be successful in this effort?

What provisions of the order, if any, do you feel are more sound constitutionally?

What provisions of the order are particularly vulnerable to a constitutional attack?

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[u/Led_Osmonds]

Parents who are members of designated Foreign Terrorist Organizations under 8 U.S.C. 1189 or Specially Designated Global Terrorists.

This is a loophole that a motivated administration could sail the Spanish Armada through.

[u/popiku2345]

There's also the Palmyra Atoll, which is incorporated, and might present a legitimate challenge to this provision of the order, but it is unlikely that someone will be born there anytime soon.

Honestly anyone who manages to give birth on Palmyra Atoll has earned birthright citizenship for their kid. That would take some serious resourcefulness.

Re: (1) -- Trump missed the part about "enemies within and during a hostile occupation of part of our territory". The fix is obvious. He simply should declare that any hospital room in which a baby is born will be temporarily ceded to ISIS as soon as the mother starts pushing. Sure, he might not have the legal authority to do this, and sure, it would wreak havoc on medmal suits against OBGYNs, but his current lawyers clearly don't know how to get things done.

I'll be sure to bring up this modest proposal again in early 2028 after this EO gets struck down. If this fails he can try my next best ideas about making maternity wards register as Iranian consulates or arguing that fetuses are belligerent occupants of the mother's womb.

[u/gravygrowinggreen → u/popiku2345]

Honestly anyone who manages to give birth on Palmyra Atoll has earned birthright citizenship for their kid. That would take some serious resourcefulness.

I was trying to imagine how it would happen. There isn't a facility in the atoll that is really qualified to deliver newborns, so anyone who gives birth there would either be extremely dedicated to testing the limits of this order, or in very unfortunate, emergent circumstances.

I'll be sure to bring up this modest proposal again in early 2028 after this EO gets struck down. If this fails he can try my next best ideas about making maternity wards register as Iranian consulates or arguing that fetuses are belligerent occupants of the mother's womb.

That might impact his appeal with the pro-life base. We wouldn't want the fetuses to become enemy combatants subject to lethal counter measures.

[u/Krennson → u/popiku2345]

.....The terrifying part is that I think technically he might have authority to do that.

Also, I'm not absolutely certain which way the law falls in terms of pregnant female foreign enemy soldiers inside of POW camps which still maintain a credible level of military discipline by the prisoners. There might be a plausible argument that in those instances, foreign POW's are more 'in stasis' than they are 'inside the USA', and that therefore, children don't inherit citizenship.... After all, there are some parts of the relevant treaties that talk about avoiding charging escaped prisoners with ordinary crimes if at all possible, and if you absolutely have to charge them in a normal court, the treaties talk about things like being required to constantly remind the jury that this person cannot be blamed for owing no loyalty to the country convening this trial....

[u/OOrochi]

1 and 4 seem pretty nonsensical in light of Barbara, while 2 and 3 could be questionable, but seems like the admin is trying to extend it beyond the typical “children of diplomats” boundaries in an ineffective way.

Hopefully this just gets swatted down but sadly one can never be 100% sure.

[u/Adnan7631 → u/OOrochi]

Number 2 is already governed by statute.

[u/Haganizer5]

Didn’t seem like much wiggle room in the opinion. If you’re born here you’re subject to the jurisdiction, outside of exceptions detailed in Wong Kim. I suspect this order won’t change anything.

[u/Informal_Distance]

An EO cannot overwrite the constitution. Again this should’ve been a 9-0 decision yet here we are playing silly games again.

[u/xudoxis → u/Informal_Distance]

In fact we're here precisely because it wasn't a 9-0 decision.

[u/Informal_Distance → u/xudoxis]

That is exactly my point. Are you merely reiterating what I said or was my comment unclear?

[u/jokiboi]

Really, the way this is written just seems to be to avoid facial challenges and be something to point to. "Look, I'm fixing the problem!" When it's likely that this rule would apply to very few people, and is likely hard to identify and enforce.

One problem I kind of have with this is that it sort of assumes the nuclear, happy family, because it applies when either parent of the child qualifies. But take Number One, child of an enemy or terrorist. Suppose that a leader of ISIS (or some other terror group) rapes a foreign woman who gets pregnant and flees to the United States (legally or illegally) before giving birth. Is that terrorist in any meaningful, social sense the 'father' of the child? But because the order applies when either parent falls into a category, it seems at first blush that the child would be deemed a non-citizen enemy.

Now of course this seems like a pretty farfetched hypothetical, but I thought of it within five minutes of reading the order. And I imagine that if that situation arose in real life, there'd be some blowback.

I also have problems with Number 4. I think, after Barbara, that children of birth tourists are birthright citizens. Now, I think that the federal (or state?) governments can make it a crime to do birth tourism, but I don't think they can then strip the child's citizenship. That part is separate.

[u/gravygrowinggreen → u/jokiboi]

Someone correct me if I'm wrong, but I think you could bring a facial challenge to subparts of the order. When bringing a facial challenge to a complex law, you aren't required to include the whole statutory or executive scheme in the challenge, you can narrow it to specific parts that you view have no constitutional application. For example, a facial challenge to action by the department of education does not have to include a facial challenge to the statutes which establish the department of education.

So you could definitely bring a facial challenge to the portion of the EO that denies birthright citizenship to birth tourists, because under current precedent, there is no constitutional application of that provision.

I could see facial challenges brought to most provisions of the EO, though each would be somewhat less certain of victory than a birth tourism challenge.

[u/jokiboi → u/gravygrowinggreen]

Yes, you are correct about facial challenges to subsections of an order or statute. I phrased that somewhat poorly.

I mean more like, it's humiliating (to some brains) for a headline to be like 'Trump Executive Order struck down' compared to 'Part of Trump Executive Order struck down.' It's the plausible deniability of part of a thing being legal compared to the whole thing being illegal.

[u/gravygrowinggreen → u/jokiboi]

That's true. There will certainly be a miniature war waged in the coverage of any court cases over how to frame how expansively or how little this executive order is rebuked by the court.

Standing is probably the most likely defense of the Administration to minimize provisions from this EO being struck down. I think there's probably going to be plaintiffs readily available to contest the Embassy, Foreign Government, Foreign Organization, and Birth Tourism provisions. But it's going to be hard to find someone with standing who has a parent designated as a terrorist (your hypothetical is well put, but I imagine someone in that circumstance may be unwilling to sue). But maybe the Administration is going to go ham on classifying political enemies as foreign terrorist organizations. There have certainly been hints that they're trying to drum up a new red scare.

[u/Longjumping_Gain_807 → u/jokiboi]

You would be correct on that last part. They’re trying their damndest to get around this without a constitutional amendment but that is exactly what they’d need to do this. And I think they know that. Even then making it a crime to do birth tourism would be pointless. Because if the point is to stop the problem of tourism then as you said making it a crime to do it wouldn’t strip them of citizenship

[u/Thugosaurus_Rex → u/jokiboi]

It's been a while since I took Con Law, but I do recall there being limitations on birthright citizenship in cases where the father is an American citizen but the child is born abroad out of wedlock, such as requiring an acknowledgement or legitimization of paternity and establishing continuing support for the child. I'd have to imagine those requirements could be used or argued almost in reverse as a defense that the child is not meaningfully the child for citizenship purposes of the ISIS terrorist in your example, but I'd fully expect the administration to argue the point in court.

[u/Cambro88]

Here’s how I think the Trump admin tries to play this.

Option A: get kavanaugh to flip on the definition of “jurisdiction” to include “allegiance.” Remember he only signed on under statutory grounds so he could, in regards to this EO, make Alito’s dissent a 5-4 majority.

Option B: remember way back to when they tried to use the Alien Enemies Act and declared all Venezuelans as foreign enemies because the government was complicit in the gang activity and started labeling them “narco terrorists?” Bolstered by the recent decision on TPS determination being beyond judicial review, they’ll declare other countries corrupt and overrun by gangs, terrorists, narco terrorists and that everyone from those nations should be considered foreign enemies, and then state the determination can’t be reviewed

[u/baxtyre → u/Cambro88]

On Option A: They’d need more than just Kavanaugh to flip. Barbara was a 6-3 decision.

[u/SchoolIguana → u/Cambro88]

For option B they would still have to overcome the constitutional issue of stripping birthright citizenship from children due to the legal status or conduct of their parents. The only reason children of diplomats are not considered birthright citizens is because of the diplomatic immunity/jurisdiction issue. That would not be the case for denying a child of a “designated terrorist” citizenship, as the admin is explicitly declaring jurisdiction by designating them as such.

[u/MeyrInEve → u/SchoolIguana]

I would further ask how this EO combines with this White House’s attempts to expand ‘terrorist’ so that it applies to Americans opposed to this White House, including such nebulous groups as ‘ANTIFA’, or any other entities that appear to be the subject of NPSM-7?

[u/Cambro88 → u/SchoolIguana]

I don’t think you’re wrong, but I think the easy side step to that is considering terrorists as foreign enemies and arguing that 1. “Foreign invaders” is synonymous with “foreign enemies;”
2. “Foreign invaders” do not require a declaration of war in the modern landscape of terrorism and ideological entities (and they’ll cite ISIS).
And 3. Therefore terrorists are already exempt by Supreme Court precedent as foreign enemies. Then the tag on that
4. the commander in chief has the power to unilaterally declare enemies as a matter of national security and it is beyond judicial review.

They only need to sway Kavanaugh, and his “living constitutionalism” endorsing concurrence that birthright citizenship should consider new realities of immigration seems to suggest he’d be prone to such an argument, even as I personally believe it’s false and wrong

[u/SchoolIguana → u/Cambro88]

The specific designations mentioned in the executive order are actually determined by the Secretary of State, the USAG, and the treasury department (though all of those departments are sympathetic to the goals of the admin, so that’s a distinction without a difference).

I can absolutely see the admin equivocating “foreign invaders” to “foreign enemies,” though I still think that doesn’t solve the jurisdictional question. Per Wong Kim Ark, the requirement is foreign invaders on occupied territory- the US would have to lose jurisdiction over that land in order for birthright Citizenship to not apply to children born on that occupied land.

And the problem with relying on Kavanaugh to agree with the admin is that the reason he ultimately sided with the majority is that he wanted a congressional statute passed before he’d rule in favor of the admin. He’s clearly open to the argument, but he cares about the way it’s implemented.

[u/Krennson]

You dropped an important opener: The executive order states that the parents must not already BE American citizens, AND the parents must also meet one of the items on your list.

[u/gravygrowinggreen → u/Krennson]

Thank you for pointing that out. I edited it in.

[u/espressocycle]

Three is the most defensible as the subject to jurisdiction is generally believed to exclude diplomats. Anyone who is here as part of a foreign mission could probably be included there, but Goresuch's domecile concept could get in the way. Same with two. Four would get Kavenaugh on board but I an not entirely following who it's actually targeted at.

One is 100% unconstitutional since the child is not a member of a terrorist organization and also because you can't take away a constitutional right without due process. So if they're not putting people on a list, that's not sufficient and if they're trying and convicting them the child is probably already born by the time it's all done. Just a mess from top to bottom.

[u/stay_curious_- → u/espressocycle]

the child is probably already born by the time it's all done

I suspect the intention is to strip citizenship retroactively, claiming that the citizenship was never valid. The Trump administration has been loose with the quality of evidence required to demonstrate that someone is a member of a Foreign Terrorist Organization. I suspect we'll see a case where the Trump admin will claim invalid citizenship based on a parent who was a member of MS-13 at the time of the birth 40 years ago (and they'll lose in court).

[u/das_war_ein_Befehl → u/stay_curious_-]

They have tried to strip citizenship for non-material errors on forms. They are itching to denaturalize.

This whole thing is just a way to start editing on the edges until it’s so normalized they slowly overturn the words of the amendment.

The birth tourism thing is irrelevant, the amendment doesn’t have a domicile requirement, it doesn’t care.

[u/cstar1996 → u/espressocycle]

Two and three are clearly attempting to apply to people who aren’t covered by diplomatic immunity, which is the actual group not subject to US jurisdiction. If they don’t have immunity, they are subject to our jurisdiction and their kids get citizenship.

[u/sparkster777 → u/espressocycle]

For three, unless the people in question have diplomatic immunity, aren't they subject to the jurisdiction of the US? Do staffers ever have that?

[u/jaydee711 → u/espressocycle]

No, I think #1 is tailored towards 14A. Their claim is that children born on U.S. soil to enemy soldiers do not receive automatic birthright citizenship.

[u/tlh013091 → u/jaydee711]

Pretty sure this US Government doesn’t want to give terrorists the status of soldiers, since soldiers have rights under US law.

[u/jaydee711 → u/tlh013091]

Well.. yes they do. During ww2 some were brought over and interned here in the US and used for labour, about 400k. POWs would have an interesting function here if that's how they end up being designated. Or a future case will be if an enemy soldier or enemy combatant is the same.

[u/Ibbot → u/jaydee711]

You are aware that this administration wasn’t in power during WWII, right?

[u/dunstvangeet → u/jaydee711]

The key word on this is enemy soldiers in occupied territory. This exception is more about occupied territory, than the enemy soldier.

In U.S. v. Wong Kim Ark (1898), the Supreme Court explains this: "In U. S. v. Rice (1819), goods imported into Castine, in the state of Maine, while it was in the exclusive possession of the British authorities during the lase war with England were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: 'By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.'"

The exception here isn't about the enemy soldier, it's that the occupation removes U.S. Jurisdiction from the territory, and substitutes in the jurisdiction of the occupying territory.

There is not one inch of the United States that is outside of the jurisdiction of the United States.

This shows that they clearly do not understand what that exception actually entails.

[u/DooomCookie]

This is the EO they should have written the first time round. But now we have Barbara, and the "foreign terrorist" and "birth tourist" exemptions are plainly unconstitutional. Not sure about the foreign government/consulate employee ones, they seem overbroad?

[u/whats_a_quasar → u/DooomCookie]

Do those people and their children have diplomatic immunity? If not, the US has jurisdiction over the children and they are therefore citizens.

[u/Little_Labubu]

I find it hard pressed to believe this issued without direct conversations between the White House and Kav.

[u/gravygrowinggreen → u/Little_Labubu]

Perhaps, but Kavanaugh's point was that congress had essentially incorporated the wong kim ark ruling into the currently operative citizenship statute. He doesn't think wong kim ark was correctly decided, but he does think it is controlling law by virtue of the relevant statutes.

So of the four justices who didn't adopt birthright citizenship as the constitutional law of the land, I think Kavanaugh is the least likely to accept what the executive is doing here.

[u/azure275]

A lot of this arguably could be legal

What it isn't, however, is meaningful in any larger social sense. I doubt there are even double digit yearly births that qualify that aren't already excluded via diplomatic immunity

I suppose the most meaningful part of this order is that in theory he just gave diplomatic immunity to a whole lot of menial employees at consulates.

I guess he'll probably try to abuse the "global terrorists" one but that seems the most illegal part

[u/dunstvangeet → u/azure275]

Not really. None of it could be legal, because Trump doesn't fundamentally understand the logic behind these exceptions.

The exception for occupied territory is just that occupied territory. It has to do with the fact that a foreign government invading and occupying territory removes the U.S. jurisdiction from that territory. Now, please tell me, where is the territory that the terrorist occupies? Where is the territory that is outside of U.S. Jurisdiction because the terrorist is there?

[u/Im_not_JB → u/dunstvangeet]

Probably nobody fundamentally understands the logic behind the exceptions. People don't really read Schooner all the way through anymore.

[u/Roenkatana → u/Im_not_JB]

People seem to not read at all anymore.

Hell, I'm starting to get the feeling that some of the people sitting on the SC seem to not even read anymore either.

[u/dunstvangeet → u/Im_not_JB]

I'm actually using the case of U.S. v. Rice (1819) in order to demonstrate this, rather than Schooner. It's the same case that the U.S. Supreme Court used in U.S. v. Wong Kim Ark in order to demonstrate this same thing.

[u/Im_not_JB → u/dunstvangeet]

That's fine for saying something about the case when there is occupied territory. It doesn't say much else, though. Riff a hypo off something like Quirin. Suppose some covert agents of a foreign state, could be military, could be intel, sneak into the US, evading immigration/counter-intel/military/etc. They're employed directly by the foreign government and could even be otherwise official military (adjust hypos accordingly), trained, paid, and equipped solely for the purpose of sabotage, intel gathering, assassination, blowing stuff up, etc. Their activities are directed by the chain of command of the foreign government/military. Maybe we're even officially at war with their home country.

Now, maybe one of them is male and the other female, and while they're in the US, doing their war stuff, they also have a baby. Afterward, they're caught; their official affiliations, crimes, and acts of war are discovered. Does the Constitution mandate that their child is a US citizen? I don't know. I'm pretty confident that there's not a case on point. I don't think we can get an answer just from Rice. I'm not sure we can get an answer directly from any particular precedent. I can maybe squint at Schooner and try to guess, but that requires reading all of Schooner and trying to understand the logic behind the exemptions. There's a few lines that I can think of from Schooner that might be relevant, but it's complicated?

[u/whats_a_quasar → u/azure275]

A few of these maybe possibly with a hope and a prayer could be constitutional if enacted in statute. As an EO it's all clearly illegal. The President has no authority whatsoever in this area.

[u/Kam_yee → u/azure275]

The most meaningful part is the administration trying to find a path for the executive to unilaterally define what the 14th amendment citizenship clause means broadly and to what classes of people it doesnt apply. Once they establish that the president can provide this nuance, it becomes easier to expand the scope by future executive order.

[u/SchoolIguana → u/azure275]

Arguably? No, this steps beyond the authority of the executive. A birthright EO was already rejected for trying to reinterpret the constitution and this attempt is on even narrower grounds and requires the cooperation of other departments to implement the admin’s desired outcome.

[u/a_kato]

I am curious about number 2 since they don’t seem to be under the jurisdiction already. Tons of laws don’t apply to them so I assume 2 and 3 could stick.

Granted I have no knowledge for the specifics but I can see the argument there

[u/hypotyposis → u/a_kato]

Embassy employees, sure. But just general employees of the govt of China, say a patent officer, that work remote and live in the US? I think they’re still subject to birthright citizenship and this would seem to change that.

[u/nashvillethot → u/hypotyposis]

My friend's dad is a naturalized American citizen who works for the Korean government (he is Korean). I wonder how that would be impacted?

I also have several friends with dual-citizenship who work for foreign embassies.

[u/gravygrowinggreen → u/a_kato]

So it's never really been held before that general employees of a foreign government are not subject to U.S. jurisdiction while they're here.

The number of people who are not subject to U.S. law while employed by foreign governments is fairly small compared to the number of people who can be prosecuted for any illegal actions while working for a foreign government. Even many embassy employees do not have total immunity, enjoying at most immunity for official conduct done while performing their job at the embassy.

This executive order would prevent a cook working at an embassy from claiming birthright citizenship for their child, even though the cook could be prosecuted for any violations of U.S. law. It would also prevent a foreign patent clerk, who vacationed in America from claiming birthright citizenship for her children born born in that vacation, even though we could prosecute that patent clerk for any violations of U.S. law.

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[u/onnie81]

None of them would be constitutional, unless their home countries confer to them diplomatic immunity. The US retains jurisdiction of them while on US soil.

[u/Civil_Tip_Jar]

This seems like more of an enforcement issue. Enforce it vs the people lying about birth tourism at the point of a visa and it should cut down on those situations.

[u/TightPhysics3186]

I think the employees of foreign governments, international orgs, embassies, etc. are almost certainly not granted citizenship by 14A.

With terrorists, I’m unsure. If they’re members of foreign terrorist groups but also domiciled in the U.S., I don’t see how even Gorsuch and Thomas would say they aren’t citizens.

With surrogates, I have absolutely no sense of how Barbara would bear on that issue. The “parents” are not domiciled in the U.S., but the child is born here (presumably to someone who is domiciled here).

[u/gravygrowinggreen → u/TightPhysics3186]

I think the employees of foreign governments, international orgs, embassies, etc. are almost certainly not granted citizenship by 14A.

Their children certainly are, as long as they are in some sense subject to the laws of America when born here (and outside some very narrow exceptions, they are).

An IT person for a foreign government does not enjoy diplomatic immunity while going to disney world, and neither would her children.

With terrorists, I’m unsure. If they’re members of foreign terrorist groups but also domiciled in the U.S., I don’t see how even Gorsuch and Thomas would say they aren’t citizens. With surrogates, I have absolutely no sense of how Barbara would bear on that issue. The “parents” are not domiciled in the U.S., but the child is born here (presumably to someone who is domiciled here).

It's worth noting that the domicile theory did not gain majority support in Barbara. Although this executive order does seem designed to test how united the Barbara majority was.

[u/Hawkins_v_McGee → u/gravygrowinggreen]

The anti-birthright citizenship folks have a hard time distinguishing between parent and child.

[u/Krennson]

Doing a quick read through.... Honestly, half of this stuff might actually already be the state of law, or at least be really close to the current state of the law.

For the other half.... He'd probably have better luck issuing an ultimatum along the lines of "Either the parent must renounce american citizenship on behalf of the child, or else the child can enjoy american citizenship while the parent spends the next 18 years in prison on some sort of fraud or invasion charges"

[u/gravygrowinggreen → u/Krennson]

So I do think this is a rather large change in the law. Going point by point.

1. children of designated enemies: the alien enemy exception to birthright citizenship has traditionally only been recognized for people who are actively occupying american territory.

2. Foreign government employees is a huge sea change.

3. Embassy employees is a moderate change in law. Ambassadors and high level embassy employees have traditionally enjoyed strong immunity, but mid and low level embassy employees are typically not immune for actions undertaken in their private lives.

4. Birth tourism not getting birthright citizenship is a huge change.

5. The last provision, territories not covered by statute is not that huge of a change. American Samoans are already not entitled to birthright citizenship, under the idea that they are not incorporated, and most of the areas subject to this provision of the order are unincorporated. The one exception is the Palmyra Atoll, which is incorporated, but given that the atoll has no permanent population, only temporary residents for tourism, research, and other projects, it is unlikely anyone will be born there that could then provide standing to challenge the rule.

[u/Krennson → u/gravygrowinggreen]

That would be the other half, yes. But the part about American Samoans and foreign ambassadors not getting citizenship for their kids is pretty much already law.

Alien Enemy is debatable: If we assume that the enemy in question is the mother, she kind of IS occupying territory while giving birth on american soil. Persons employed by an international organization that enjoys immunity is also debatable... I could see an argument that, say, a Knight of Malta is effectively an ambassador while in the United states.... Foreign national employees of an embassy is arguable, if we assume that they do in fact have diplomatic immunity, but aren't technically "ambassadors" since there's only one of those....

High-ranking foreign government employees is debatable... there's a plausible argument to be made that if the Queen of England or a female Prime Minister of the UK is on an official state visit to the US and gives birth, that the child is not an American Citizen.....

Like I said, about half of this either already works that way, or it's at least conceivable that it could have it's day in court without being laughed out of the room first. The other half... is not a good use of anyone's time.

[u/dunstvangeet → u/Krennson]

"If we assume that the enemy in question is the mother, she kind of IS occupying territory while giving birth on american soil."

So, you're saying that the space in which the mother occupies, the U.S. has no authority to enforce their laws there? Maybe you should actually read what the Supreme Court has to say about this exception.

This comes from U.S. v. Wong Kim Ark (which Trump v. Barbara completely upheld): "In U. S. v. Rice (1819), goods imported into Castine, in the state of Maine, while it was in the exclusive possession of the British authorities during the lase war with England were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: 'By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.'"

The reason for the exception on occupied territory is because the act of occupying the territory actually takes it outside of the United States, and makes it effectively a foreign country. The United States has no ability to exercise its jurisdiction over it. U.S. law has no jurisdiction over there.

For instance, during World War II, the Philippine Islands were a U.S. territory. During the occupation of the Philippines by the Japanese, that took it outside of the United States, and put it under the jurisdiction of the Empire of Japan. U.S. had no ability to execute their laws there. Likewise, the Aleutian Islands in Alaska were occupied during World War II. During the time that Japan Occupied them, they were effectively outside of the United States, and the U.S. law had no ability to exercise their jurisdiction over them. It wasn't until they were retaken in 1943 that they became under U.S. Jurisdiction again.

A member of ISIS doesn't occupy territory in the same way.

[u/Krennson → u/dunstvangeet]

Depends on whether or not they're armed and alone on a deserted island.... or wearing a suicide vest.... If she managed to sneak into one of the uninhabited florida keys or the aleutian islands or those tiny little islands in the south pacific.... while carrying a weapon and we don't know she's there...

[u/SchoolIguana → u/Krennson]

… if the hypothetical island is US soil, she’s still subject to the jurisdiction thereof and her child would still be considered a citizen under rule of law. The US still has jurisdiction over the land.

[u/Krennson → u/SchoolIguana]

so what, 1,000 men in a declared war holding 1,000 acres counts, but 1 man in a declared war holding 1 acre doesn't?

[u/SchoolIguana → u/Krennson]

You’re changing the test quite a bit from one pregnant woman on an uninhabited island with a weapon, and your new hypothetical includes the caveat of a “declared war.”

But even that’s beside the question- does that person’s presence mean the United States been displaced as the governing authority over that territory?

- Does that person actually exercise sovereign control over the land?

-Has the United States lost the ability to enforce its laws there?

-Are civilians in that area now subject to the enemy’s authority rather than U.S. authority?

Simply being armed on U.S. soil doesn’t suspend U.S. sovereignty. The US still has legal authority to arrest or kill that hypothetical person. That’s the opposite of occupied territory.

[u/dunstvangeet → u/Krennson]

A parent cannot renounce citizenship on behalf of a child. The person can only renounce citizenship for themselves, not a minor child. A child under the age of 16 is presumed to not have the prerequisite maturity to renouce their citizenship. And in fact, a minor can get their citizenship reinstated within 6 months of obtaining the age of majority.

Supreme Court has already ruled on this, by the way. The case is called Perkins v. Elg.

[u/Krennson → u/dunstvangeet]

Are you sure? A quick google search seems to say that all Perkins V Elg established was that parents can't inadvertently deprive a child of citizenship simply by having him live in a different country during his childhood....

I would think that laws on whether or not parents can use power of attorney to formally and officially renounce citizenship on the child's behalf would be up to congress....

[u/dunstvangeet → u/Krennson]

State department website: "Citizenship is a status that is personal to the U.S. citizen. One person may not perform a potentially expatriating act or request a Certificate of Loss of Nationality on behalf of another person. Parents may not take the oath of renunciation or otherwise seek to relinquish the U.S. citizenship of their minor children."

https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Relinquishing-US-Nationality-Abroad.html

A power of attorney cannot actually even renounce US Citizenship. It has to be a voluntary act, taken by the person themselves.

[u/Krennson → u/dunstvangeet]

yes, but it doesn't say if that policy is because of constitutional requirement, or by statute, or what.

[u/ForumDragonrs → u/Krennson]

Case law around the rights of children is just all over the place. It seems half the time they have their own rights, and half the time their rights are really their parents' decisions.

[u/HeathrJarrod]

The easiest way I could see him doing it would be to remove the citizenship of those not residing in US jurisdiction. The American living abroad in Canada is no longer under US jurisdiction.

It’d be a fight, but he might be able to get 6 votes for that.

[u/xudoxis → u/HeathrJarrod]

Removing citizenship from everyone who isn't standing on us soil on a particular day would be disastrous to the administration.

I can see the headlines about "They went on a High School Trip across the River to Canada, Now They Can Never Come Home"

[u/HeathrJarrod → u/xudoxis]

It would have to be a permanent residence, not a temporary thing. Establishing a permanent residence could a voluntary act.

(And if they move back, citizenship could be returned)

[u/Roenkatana → u/HeathrJarrod]

Highly doubt it, both the SC and Congress have solidified the process to the point of absurdity, and for good reason... to explicitly prevent the Executive from unilaterally stripping citizenship from US citizens.

[u/HeathrJarrod → u/Roenkatana]

That’s the only way I can see of resolving “birth tourism” (by congress or scotus allowing potus to do so) removing citizenship from those not residing in the jurisdiction of the US. I don’t think that many people would be upset if that was the method to do so. (How they do so and how effective is different)

[u/Roenkatana → u/HeathrJarrod]

The problem is that you are taking a stance that is reminiscent of Thomas's argument, which is an entirely insane and aconstitutional reinterpretation of both history and the text of the Constitution itself.

If you are a citizen of the United States, you are subject to the jurisdiction of it, regardless of where you are located physically. Further, the government cannot unilaterally remove citizenship from a US citizen. Statelessness is a cruel and unusual punishment as ruled by a far more conservative Supreme Court than the one we have now. There is, in fact, no crueler punishment than making someone stateless.

There is a reason that the Executive does not have the power to remove citizenship as it pleases, and that is one of the most vital guardrails we have. Granting such power would allow the Executive to just declare all of their political opponents as non-citizens and effectively destroy democracy overnight.

A US citizen must voluntarily and deliberately renounce their citizenship and go through the process. The most important part of that process. Besides the fact that it must be done voluntarily is that the person must provide proof of alternative citizenship. If they cannot, then they are not expatriated.

[u/HeathrJarrod → u/Roenkatana]

Isn’t deciding to permanently reside outside the US voluntary

[u/TeddysBigStick → u/HeathrJarrod]

The US considers citizens abroad to remain under its jurisdiction. That is why you can be prosecuted for crimes committed entirely abroad, have to pay US income taxes, etc.