President Trump's new attempt to cabin birthright citizenship is a lot narrower than the one the Supreme Court struck down in June. Its key provisions are still unconstitutional.
I have a third theory why Trump is trying this. One reason the Supreme Court ruled as it did in Barbara is it had no real choice if it was to maintain a facade of impartially ruling on the law and the Constitution - the text of the Constitution is just too clear. By making up some scenarios that may not be as obviously wrong to the casual observer, Trump is hoping the Supreme Court will feel more entitled to rule in his favor.
Apologies for once again annoyingly quibbling—especially inapt for a newsletter about a court that disdains mere error correction—but the five pivotal words quoted from the Barbara decision are actually six words.
I’m glad you alluded to the distinction between diplomatic immunity and the more limited consular immunity. But how is the latter to be categorized for the purposes of citizenship? Those with consular immunity are partially removed from host-country jurisdiction— they enjoy immunity for their professional conduct and for unbroken travel between their offices and home (a long-argued case involving a U.S. consular office that had struck a pedestrian with his car turned on the fact that the officer had stopped at a gym on the way home).
How long will it take until a non-diplomatic embassy employee kills a US citizen and argues immunity from prosecution on the basis of this EO? Maybe the prediction markets can weigh in…
I have a third theory why Trump is trying this. One reason the Supreme Court ruled as it did in Barbara is it had no real choice if it was to maintain a facade of impartially ruling on the law and the Constitution - the text of the Constitution is just too clear. By making up some scenarios that may not be as obviously wrong to the casual observer, Trump is hoping the Supreme Court will feel more entitled to rule in his favor.
Apologies for once again annoyingly quibbling—especially inapt for a newsletter about a court that disdains mere error correction—but the five pivotal words quoted from the Barbara decision are actually six words.
D’oh! Fixed. (And don’t apologize! I really should’ve caught that.)
“because he couldn’t be arrested, prosecuted, sanctioned, and deported; he was outside U.S. jurisdiction both formally and practically.”
Although, post-Maduro, it is less clear that would be true of anyone at all….
I’m glad you alluded to the distinction between diplomatic immunity and the more limited consular immunity. But how is the latter to be categorized for the purposes of citizenship? Those with consular immunity are partially removed from host-country jurisdiction— they enjoy immunity for their professional conduct and for unbroken travel between their offices and home (a long-argued case involving a U.S. consular office that had struck a pedestrian with his car turned on the fact that the officer had stopped at a gym on the way home).
How long will it take until a non-diplomatic embassy employee kills a US citizen and argues immunity from prosecution on the basis of this EO? Maybe the prediction markets can weigh in…
What about children born in territories controlled by the Confederacy — ie in areas temporarily removed from U.S. sovereignty?