Alright, let's dive into a #Law140 on birthright citizenship and this idiotic story

The TL;DR:
1️⃣ Trump cannot do this via Executive Order
2️⃣ News outlets who uncritically parrot Trump's claim that he can, without noting he can't, are misinforming readers
(They're also promoting even more civic illiteracy than normal. But I realize that ship set sail a long time ago.)
Before we begin, the standard #Law140 disclaimers apply:
Let's also acknowledge the -entire- purpose of this "proposal" is to take everyone's attention away from a white supremacist killing two black folks in a supermarket, a Trump supporter mailing pipe bombs to prominent Democrats, and a neo-Nazi killing 11 Jews in a synagogue
But just because it's a distraction doesn't mean it shouldn't be pushed back against.


So here we are.
When it comes to the concept of citizenship, it's important to remember that the law evolves over time

I'm going to talk about things in chronological order because it makes things easier for folks to understand why stuff is the way it is
Citizenship is typically broken into 2 categories:
➡️ "birthright" (you get it the day you're born)
➡️ "naturalized" (you become a citizen based on restrictions set out in the law that you meet over time)
Birthright citizenship, in turn, is also broken into 2 categories:
➡️ "jus sanguinis" ("right of blood") meant a child inherited the citizenship of its parents
➡️ "jus soli" ("right of the soil") meant a child's citizenship was based on where it was born
Both concepts, jus sanguinis and jus soli, existed in the Roman Empire before the Christian Era. They're not new ideas.
Spoiler: the United States has both
Jus soli was also embedded in the British common law

"Common law," remember, is judge-made law. It's judicial interpretation of things (acts of Parliament/Congress, a Constitution, prior court decisions, etc) in order to resolve specific disputes (inheritance, land fights, etc)
The common law application of jus soli was rooted in the idea that people born under the British Crown's dominion would feel a debt of gratitude (and therefore allegiance) for the benefits that came with being born under the Crown's protection.
Hence the Latin phrase "protectio trahit subjectionem, et subjectio protectionem" – protection draws with it subjecting, and subjection protection

Basically "I'm loyal to you, you're loyal to me, we'll take care of each other"
The British courts are referred to as the "King's Bench" (or "Queen's Bench" these days because their monarch is a woman)

One of the key cases on citizenship is known as "Calvin's Case," which the King's Bench ruled on in 1608

You can read it here:
Basically Robert Calvin was born in Scotland, but had inherited land in England.

The defendants in the case argued the land was theirs, because Calvin could not inherit English property since he wasn't a native-born Englishman
Here's how the King's Bench framed the legal issue: "whether Robert Calvin the plaintiff ... be an alien born, and consequently disabled to bring any real or personal action for any lands within the realm of England."
The decision is long, and the writing of the time is both tortuous and tortorous to read. But the gist is the Court ruled for Calvin and held that he was a natural-born citizen of the Crown, able to hold land in England despite being born in Scotland.
Calvin's Case was widely known among the lawyers and judges at the time of the American Founding in part because it was included in a compilation of court opinions (called a "reporter") created by Sir Edward Coke
And it was also binding legal precedent for the entire British Empire – meaning the courts applied it not just for Great Britain, but for all of its existing and future colonies (the US, Canada, South Africa, Australia, etc etc etc)
This same jus soli concepts are also reflected in the text of the British Nationality Act of 1772, which you can read here:
The 1772 edition of the BNA has since been repealed and replaced by a normally-worded statute, but here's the key language

Basically if you were born in the Empire, you were a citizen of – and subject to – the Crown
The American colonies of course declared their independence in 1776 🙏🙌
But a key point to remember is that the British common law of the time was also the American common law at the point of the separation
It influenced how the Framers saw themselves: as once-British citizens, now declaring independence, who "inherited" British law that still applied until such time future American legislatures and courts saw fit to amend or abolish it
(It's not relevant to the discussion here, but there's an 1800s-era court case by the Tennessee Supreme Court that talks a bit about this concept of inheriting British law, State ex rel Kain v Hall, 65 Tenn 3 (Tenn 1873))
So of course our first attempt at self-governance were the Articles of Confederation ratified in 1781, which didn't include anything at all on immigration. Each state was free to do what it wanted about who could come in to the particular state.
The Articles were a hot-@$$ mess and thankfully were replaced by the Constitution, ratified in 1788

Article I, Section 8 of the Constitution provides "The Congress shall have Power ... To establish an uniform Rule of Naturalization"
Although Congress hadn't done so by statute, it was just assumed by the lawyers and judges of the time that jus soli applied and if you were born on American soil you were an American
Consider, for example, Murray v The Charming Betsey, 6 US 64 (1804)

This was a Supreme Court case that centered on shipping, and selling goods to France in violation of America's official neutrality during the Napoleonic Wars
The Court ignored the issue of whether someone can give up their citizenship, because it wasn't necessary to consider.

But read how Chief Justice John Marshall starts the particular passage noting that:
The "Whether ... or" reflects the understanding of the time: a person acquired citizenship either by being "born in the United States" or "becoming a citizen according to the established laws" (naturalization)

And that was from *John Marshall*
(If you don't know who John Marshall is, Google him. He was the 4th Chief Justice and one of the most-influential Supreme Court justices this country has ever had.)
Well fast forward a bit to John Marshall's successor as Chief Justice, Roger Taney.

Widely regarded as one of the worst. And a man who helped start the Civil War.
Taney wrote the majority opinion in Dred Scott v Sandford, considered one of the 3 worst Supreme Court rulings in American history (usually alongside Korematsu and Buck v Bell)
(I personally think Plessy was worse than Buck, but that's a nerd fight for another time)
You hopefully learned about the Dred Scott case in elementary school

Dred Scott was a slave who'd been moved to the Wisconsin territory – an area where slavery was prohibited by the Missouri Compromise
Years later, Scott's owner moved Scott and his family to Louisiana. When Scott's owner died, he was given to the owner's wife. Scott sued, argued he'd become a free man during the time he was in Wisconsin.
Slavery had been a pain-in-the-@$$ issue for President Buchanan. So Buchanan *coordinated with Chief Justice Taney* on how to write the Scott v Sandford ruling.
The Supreme Court majority in Dred Scott v Sandford held that slaves, regardless of whether or not they eventually became free, could never become citizens.

As a result, Dred Scott could never sue in court.

Which was enough to resolve the case.

Chief Justice Taney just... kept... writing.

The opinion is long as hell, and everything after "you can't sue because you're not a citizen lulz" is what lawyers call "obiter dictum": random irrelevant 💩 that's not legally binding
Not only did Taney and his majority rule that Scott wasn't a citizen.

They went on to hold that Congress had *no power to regulate slavery at all whatsoever.*
To which Congress was like
And the free states – now faced with the prospect that they could one day be forced to allow slavery – were all like
To his credit, Justice Benjamin Curtis dissented in the Dred Scott case and noted Taney was a f*cking moron: "The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth."...
..."Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."

And on from there
President Buchanan and Chief Justice Taney thought they were going to put the slavery issue to rest forever as a result of the Dred Scott decision

Instead, they triggered the Civil War
After the Civil War was over, and the Confederate traitors who'd engaged in active treason against the country were sufficiently mollywhopped, Congress proposed the Fourteenth Amendment to the Constitution and forwarded it to the states for ratification
The first section of the Fourteenth Amendment reads:

"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."
That part set off by the commas, "subject to the jurisdiction thereof," was intended to exclude 3 classes of children:
1️⃣ diplomats (who owed allegiance to their home country)
2️⃣ indigenous people (who owed allegiance to their tribe)
3️⃣ invaders (who were governed by laws of war)
(As you can probably guess, that 3rd category is the one Trumpists think enable the Government to end birthright citizenship.)
Soon after the Fourteenth Amendment was ratified, the Supreme Court decided Chae Chan Ping v US in 1889

This case became known as the "Chinese Exclusion Case," and it's where the Supreme Court developed the Plenary Powers Doctrine
Eight years later the Supreme Court decided US v Wong Kim Ark in 1897

This opinion is huge, both in terms of impact and detail
Wong Kim Ark was born in the State of California, in San Francisco. Both of his parents were Chinese nationals.

The Chinese Exclusion Act provided that Chinese immigrants could never become naturalized American citizens.
WKA went to visit his family in China when he was 21 – after he'd been in America since birth.

When he tried to come back after the visit, immigration authorities blocked him from entering the country and WKA filed suit.
Legal scholars – including the good folks at @oyez – characterize Justice Gray's majority opinion in WKA as "tedious"

And it is. It's loooooooooooong af, and Gray goes through basically the entire history of jus soli throughout the entire Western civilization since ancient Rome.
Here's how Justice Gray articulated the legal issue the Supreme Court had to decide:
And Justice Gray then traces almost the entire f*ckin' history of the subject of jus soli, in excruciating thoroghness

He concludes somewhere in the middle:

"So far as we are informed, there is no authority, legislative, executive, or judicial, in England or America..."
"...which maintains or intimates that the statutes (whether considered as declaratory, or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth..."
"...within the dominion. Even those authorities in this country which have gone the furthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents."
But he wasn't done. Justice Gray continued elsewhere:

"In the forefront, both of the fourteenth amendment of the constitution, and of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed..."
" the most explcit and comprehensive terms. The first section of the fourteenth amendment of the constitution begins with the words, '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.' As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within..."
"...the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish..."
"...the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Scott v Sandford (1857); and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens..."
"...of the United States. Slaughter House Cases (1873); Strauder v West Virginia (1879); Ex parte Virginia (1879); Neal v Delaware (1880); Elk v Wilkins (1884)..."
"...But the opening words, 'All persons born,' are general, not to say universal, restricted only by place and jurisdiction, and not by color or race, as was clearly recognized in all the opinions delivered in the Slaughter House Cases, above cited."
Justice Gray's opinion in Wong Kim Ark was so thorough, and so forceful, it's served as the cornerstone of birthright citizenship cases since it was handed down 120 years ago
So fast forward to the post-WWII era.

Congress enacted the Immigration and Nationality Act of 1952, which created Chapter 8 of the United States Code.
Part of the INA – 8 USC 1401 – lays out the main classes of American citizens

You'll note that 1401(a) is a copy/paste of the Fourteenth Amendment
The sections that follow, 8 USC §§1401-1407, provide citizenship for people born in a variety of US territories:

➡️ Puerto Rico
➡️ The Panama Canal Zone
➡️ Alaska pre-statehood
➡️ Hawaii pre-statehood
➡️ US Virgin Islands
➡️ Guam
Of course nothing enacted by Congresscritters would be complete without pointless f*ckery, so the next section (8 USC §1408) provides for second-class status for people born in "outlying possessions" – you get to be a natural-born national, not a citizen
(So far as I know this only includes American Samoa and Swains Island. If anyone knows of any others, @ me)
(And if you're not familiar with Swains Island, Google it b/c holy sh*t we've got some weird history with outlying possessions)
And then in 8 USC §1409 we've got some statutory wonkiness on how to deal with jus sanguinis for children who are born out of wedlock
So the wishful thinking of the Trumpists is that, if you're here illegally, you're not "subject to the jurisdiction of" the United States for your kids to become citizens

This is news to undocumented immigrants who get traffic citations or arrested for crimes or pay sales taxes
Could the Supreme Court of the United States rule that way?

I suppose it's theoretically possible, but they'd have to jettison literal centuries of jus soli jurisprudence.

The liberal justices won't do that. Nor, I suspect, will Roberts or Gorsuch.
For Trumpists to actually get their preferred end result, they'd have to:
1️⃣ get the Supreme Court to overrule US v WKA; *and*
2️⃣ get Congress to amend the INA; *and*
3️⃣ amend the Fourteenth Amendment so a future SCOTUS doesn't undo the hypothetical overruling of WKA
You'll notice "Write an Executive Order" does not appear in that list

Because immigration is a plenary power of Congress under the Chinese Exclusion Case
This is all mind-boggling stupidity of the type intentionally designed to rally the xenophobic Republican base before midterms next week

They'd rather you talked about this than neo-Nazis exterminating Jews on American soil, GOP assassination attempts, and executing black folk
So let not your heart be troubled, recognize this for what it is, and PLEASE FOR THE LOVE OF GOD MAKE SURE TO VOTE AND GET ALL YOUR FRIENDS TO DO THE SAME PLZKKTHXU
Thus concludes our Twitter University School of Law #Law140 class on birthright citizenship. Thanks for reading.
Voting? Yes. Automatic F for anyone who stays home.
Entry is exclusively legislative as well, but Congress delegated authority over entry to the Executive in the INA
It's one of my favorites these days
"What good is Congress, then?" is an evergreen tweet tbqh
Though I loathe the idea of a constitutional convention at all, one would only have the power to propose amendments – each of which would still require 38 states to ratify

No substantive threat there IMO
Meant to tack this into the main thread, but @ishapiro of @CatoInstitute wrote a piece on this in the pre-Trump era. I think he gets the key points right (though obv I'm more strident in my insistence nothing substantive will change)
Another good write-up by Judge Ho is linked here:

I appreciate you 👊
I suspect you'll find that Bill is blissfully immune to facts or data
Nah. You've got the entire stretch of British law as of 1776; after that, we developed our own organically. Main influences are homemade (e.g. the Federalist Papers) though some post-1776 rulings by courts of UK heritage can be persuasive
I chuckle at the random @'s and their "you're ignoring this thing that has no basis in law at all but was mentioned by a grifting org I support!"
We do have a border...
The fun part about this is the complete 180° by these *same* people who were just arguing w/ @KevinMKruse et al mere days ago about how Republicans freed the slaves and passed the Civil War Amendments
The courts, exercising their contempt powers to have obstreperous bureaucrats jailed for noncompliance
I'd teach if a law school would hire me 😬 Maybe one day, we'll see
"Pedigree" matters. A posting for one law school about an hour from me said to contact a particular faculty member for info; I got a response back that I didn't have the credentials they were looking for (before I could apply!)

It was teaching CrimLaw 😂
Citation needed for "GOP-packed judiciary"
We have a lot of federal judges

The ones appointed by Clinton and Obama got life tenure too
Helps if I wanted to be an adjunct or clinical prof. I'd like to teach the doctrinal courses though (ideally CivPro or Crim)
Once had a case where we had to do an interpleader. The judges, opposing counsel, the clerks, not a single soul knew how it was supposed to "work" but me 😬
My alma mater and I have an... odd relationship

Well not really the school itself, but those persons tasked with faculty hiring 🙃
Already linked midthread!
It's so weird. "Hey let me copy/paste the same half-assed argument to a whole bunch of ppl who don't care" is a weird way to spend Twitter time.
You've got 3 links on appointment rates. None talk about the current partisan composition of any courts. They're very different things.
I'm not trying to be snide btw, @Frances_Larina. Despite McConnell's blockade of Obama's nominees, O still replaced a third of the judiciary over 8 years
SCOTUS appointments always have outsized influence of course

But when it comes to lower courts, I'd only be concerned if both 1️⃣ Trump got re-elected in 2020 and 2️⃣ pacifist Rs kept the Senate
("Pacifist" in the "refuse to exercise Article I power to hold the Article II President accountable" sense)
There will be quite a few liberal judges on the bench for a long time, ready to invalidate Trump action when appropriate
Particularly the Ninth Circuit, which IIRC has a 2:1 D:R ratio, the highest caseload, the biggest jurisdiction in terms of both population and land, and a number of deep blue states (CA, HI, OR, WA)
So you didn't actually read before tweeting. Got it 👍👍
Saw it late last night and opted not to comment 😂 It was/is clickbait garbage
It reminded me of a @Popehat trope, just applied to a "legal analyst" rather than a professor, @scherlis
There was no comprehensive system of immigration restrictions at the time the Fourteenth Amendment was enacted. The column is akin to saying the Founders didn't want the First Amendment to apply to computers. It's gibberish.
Elk v Wilkins was replaced by US v Kim Wong Ark 14 years later. The notion there's something for SCOTUS to resolve is fatuous.
There's no real context to provide; the Congressman isn't providing a list, he's describing children of diplomats ("foreigners ::pause:: aliens ::pause:: who belong..."). If you read it as though it were a list the sentence sounds off grammatically
But even if we assumed it *were* a list, the public remarks of 1 Congressman are not binding on interpretation. US v WKA definitively settled the meaning of the phrase.
Did other Congresscritters see things differently? What about each politician in each state legislature that ratified it?
For folks who find this thread in the future, a thread on the Congressional debates about the language is here:
And another thread by a different scholar here:
And of course Kevin compiling several authorities together in this thread:
The Judiciary today is far more muscular than under Jackson's time. Judges would have people jailed for contempt.
Or, equally effective, deny them qualified immunity when they're sued for violating someone's rights and let them be bankrupted
I see you don't understand what you read. Try again, come back with something showing an understanding of the subject matter, then maybe we can have an educated discussion.
Except there's no basis, in law or fact, for your interpretation of it

Thankfully your tweets aren't binding on the courts
🤡: "This thing that doesn't actually make any sense when you think about it was in fact well established!"

If it were "well established," you'd think there'd be more in the historical record than just a guy's tweets 🤔
1️⃣ We have a Civil Service System now that didn't exist when Jackson was President; plenty of Executive Branch personnel, who owe no loyalty to the President, will do their jobs

2️⃣ The Supreme Court Police are under the Judicial Branch, not the Executive
You've also highlighted another one of the Trumpist contradictions

🤡: "We can't judge Confederate heros by modern standards!"

🤡: "We *can* judge the meaning of Confederate-era laws by modern standards!"

cc: @metroadlib
Not very Originalist of them tbh
Here's the one from yesterday:
Let me tack this onto the thread so I can come back to it when you lose
Yeah your pic is not what the Supreme Court held in Wong Kim Ark.

Talk less. Read more.
Until 38 states adopt these "new ratification procedures," the old ones still apply.

Undoing a governing document that's been in effect for 230 years is a different beast than undoing one that was in effect for only 6.
There are enough real threats to worry about without silly sh*t like this
And go the extra mile to tack it onto the tail end of a thread that actually explained what it said, with quotes!
One of the hidden upsides to having such a sprawling bureaucracy
What crisis? Noncompliant Executive Branch officials are forced to adhere to judicial orders they don't like all the time

The entire purpose of the civil service system was to ensure the Executive did *not* "serve at the pleasure of the President."

POTUS gets Cabinet-level and 1-2 levels deep from there. The rest are civil servants all the way down, not patronage spots
The federal Office of Personnel Management says there are approximately 2,790,000 federal employees

The President appoints about 4,000
That's ~0.14% of the federal workforce, for those keeping track
Yes, you've made it apparent you've forgotten quite a bit about the law

Re-acquaint yourself instead of sharing inaccurate memes, then get back to us
Most civil servants have 20-30 year careers. They're not going to jeopardize that for a President who will be gone in 4 or 8
That's what the entire "Deep State" is – civil servants who exist outside the reach of the politicians
There's nothing to respond to; he's making the argument that the First Amendment was never intended to apply to computers. It's entirely nonsensical b/c it relies on things that neither existed nor were conceived of at the time.
I did read it, and it's why I responded as I did. "Being here legally" wasn't a thing back when the 14th Amendment was drafted; we didn't have a comprehensive immigration system like we do now.

It's like saying the First doesn't apply to online speech
The same point was made, and debunked, at several points midthread
I don't think there's any real tension between staying faithful to original intent (which is necessary IMO) while also recognizing there's a lot of stuff original drafters never could've conceived of (e.g. the internet, the Air Force, etc)
Plenty are, they're just not all Twitter-famous like me 😉
In which Uatu – who has a law degree – mocks the birthright citizenship that made him a citizen because neither of his parents were when he was born
Live look at @marcorubio for literally every other political issue
Marvel comic book character, dubbed "The Watcher" – he observes, but never interferes
"Natural order" for us at the time was the British and broader European order, nearly all of which had both jus sanguinis and jus soli during that era (though most have since abandoned it).
I don't think those other countries are hellscapes, but I also have no interest in moving to them. America was arguably the first country founded on an idea instead of geography; birthright citizenship dovetails cleanly with that.
I'll defer to the British lawyers on its meaning in British law (cc: @JJGass @MattJEJackson)

I included it in this thread because British law *is* American law up until 1776 – it's the base we started from – and is heavily influential in the years after
You can follow @greg_doucette.
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