Trump presidency

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Tyndmyr
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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 5:49 pm UTC

They can do that regardless of if they embrace retroactive changes, though. Even simply changing it going forward, while obviously going to bring on a court battle, would be a huge win for anti-immigration sorts.

Why would they take on a significant PR liability when they can get the popularity benefits either way?

gmalivuk wrote:There are white veterans already being fucked over, and surely even you haven't been living under a rock so big that you're unaware people can be convinced someone was a criminal whether or not they actually were.


The ease with which this is done depends on existing biases to a large degree. If someone's biased against a given race, it's easier to convince them that they must have been a criminal. They can get away with a fairly substantial amount of casual dickery against unpopular demographics without hurting their base. The more they start hitting folks outside of their target demographics, though, the more they risk losing support. So strategically, there's no reason for them to adopt such a policy when they can quite easily aim to not.

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Re: Trump presidency

Postby Weeks » Wed Oct 31, 2018 5:57 pm UTC

What makes you think the MAGA idiots care about some random people who "probably deserved it"? They'll probably brand them as "race traitors" and move on. Your country is already shit and will get shittier since you voted for glorious leader.

Like your point is "nah they won't, they're not that dumb or evil" but you're being shown that yes they are, and you just go "but but but LOGIC and REASON??????? AAAAA"
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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 6:08 pm UTC

I don't need to ascribe them wisdom, I just need to understand what it is they want. For politicians, it's largely popularity with their base. Exactly how true this is varies somewhat, but for someone like Trump, there are not a ton of additional morals limiting that.

So, Trump's pretty straightforwardly doing this for self interested motives. This is extremely predictive for Trump's actions in general. If supported by other politicians, they'll be doing so for similar reasons. Judges have far less motivation to take an extreme position here than, say, Trump does. Even those who were approved by Trump are probably more moderate than he is on the balance. Likewise, congress hasn't managed to be unified enough to act on this so far via legislation. If they manage to become so now, it would be unlikely that they would immediately become so unified as to jump to extremes.

This is particularly true because it doesn't seem as if congress is going to get a lot redder in the upcoming election.

It is, while unwise, possible that a series of circumstances will result in a reinterpretation of the 14th that stands*. This is already pretty huge in terms of law. A giant rollback of prior statuses would make it far bigger, more complicated, and more problematic to get passed. Bad PR opportunities exist, legal challenges are a given. In short, very little additional gain is found by the right for pursuing this, in return for a great deal of costs. It's poor strategy to seriously pursue, and if pursued anyways, would probably cost them the still-significant win they would otherwise have.

I don't need to assume that every random idiot cares, just that enough politicians understand the potential problems to avoid a majority pursuing it. So far, that's been a safe bet.

*I would place low odds on even that surviving the judicial branch, though.

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Re: Trump presidency

Postby natraj » Wed Oct 31, 2018 6:25 pm UTC

anyway not on the topic of People Insisting That Shit We're Literally Already Fucking Doing Is Too Improbable To Happen and rewinding a bit to Reason #573 this administration is antisemitic,

in the wake of the pittsburgh shooting pence invited a messianic jewish "rabbi" (who he called "a leader in the jewish community") to give prayers for the synagogue victims.

for those of you who don't know or who are just itching to explain to me how Not Antisemitic this is, messianic "jews" aren't jewish at all (which is tbh one of the very few things all streams of Judaism generally agree on!) but not only are they christians who dress up in jewish culture, they began as a movement for the specific and explicit purpose of pulling actual jewish people away from judaism. they are literally *specifically anti-jewish* christian missionaries whose goal is to convert as many jews as possible,and that's who they think is appropriate to invite to pray for our dead.
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Re: Trump presidency

Postby bbluewi » Wed Oct 31, 2018 6:29 pm UTC

I see three distinct avenues for a thing to immediately gain near-universal support from the MAGA crowd. Satisfying even one will suffice.

1. (Not-so-)subtle messaging that the white people that get caught in the net deserve it (and considering the number of levels they use to feel superior to people, that won't be hard)

2. If it pisses off anyone with half a brain cell in their body, because "owning the libruls"

3. Trump did it, so obviously it's right.

This already checks boxes 2 and 3, and you're under a rock the size of the planet if they haven't been checking box 1 for everything else over the last 3 years.

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 6:40 pm UTC

bbluewi wrote:I see three distinct avenues for a thing to immediately gain near-universal support from the MAGA crowd. Satisfying even one will suffice.

1. (Not-so-)subtle messaging that the white people that get caught in the net deserve it (and considering the number of levels they use to feel superior to people, that won't be hard)

2. If it pisses off anyone with half a brain cell in their body, because "owning the libruls"

3. Trump did it, so obviously it's right.

This already checks boxes 2 and 3, and you're under a rock the size of the planet if they haven't been checking box 1 for everything else over the last 3 years.
Yeah, people seem to keep forgetting that the majority of Trump supporters are in favor of putting children in cages. I think once you cross that threshold, there's really not much left to wig you out.

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Re: Trump presidency

Postby cphite » Wed Oct 31, 2018 6:45 pm UTC

ucim wrote:
cphite wrote:The central issue is going to be the phrase "subject to the jurisdiction thereof" - that's the grey area. The argument will be that a person who has entered illegally is still under the jurisdiction of their home country, and that the same applies to their child, and that therefore the conditions are not met for citizenship.

On the other side, we have decades of legal precedence saying that children born to undocumented people are, in fact, under the jurisdiction of the United States, and are therefore granted citizenship.
The phrase is, however, not "subject solely to the jurisdiction thereof". Even if one is subject to the laws of Outer Tazmania, one is still subject to the laws of the United States while they are here (with exceptions for diplomats, who are immune).


The argument they will make is that in this context, the phrase "subject to the jurisdiction thereof" is referring to the national allegiance or citizenry of the individual; and that until they are legally residing within the United States, they owe their allegiance to their home country for the purposes of citizenship.

By the way... this isn't even a new argument - this is something that's been debated for decades. This is just the first time a president has threatened to force the issue.

The 14th amendment is quite clear. These people are citizens.


I personally agree with you; but there are plenty of legal scholars who disagree, and no court has ever made a definitive interpretation. The courts could go either way; and if they decide down political lines, it's quite possible they support the executive order.

Trump's executive order nullifies the 14th amendment.


It would reinterpret the 14th Amendment. There is far more to the 14th than birthright citizenship, and even that would not change for persons legally residing within the United States.

If that is allowed to stand, then next to nothing would stand in the way of nullifying any other clause of the Constitution, and it will become (as Bush once said), "just a piece of paper".


Well, again, it wouldn't be nullifying any part of the Constitution; it would be reinterpreting a clause of the Constitution. This is no different than the argument over whether the 2nd Amendment grants the right to bear arms to private citizens or to militias. Both sides of that argument use the exact same text to support their position; and neither one renders the Amendment, much less the Constitution, null and void.

Every so often the argument arises that only militias should have guns; and some folks on the right start screaming about how it'd nullify the 2nd amendment. They're wrong too, and for the same reason.

And Trump's attempt, and its support, should be regarded with the highest alarm.


I don't disagree with that.

The reality is, there is a chance that Trump pulls this off. The courts may decide that the argument has merit - that people here illegally do not fall under US jurisdiction - and that will be that, at least until the next administration changes it back, or unless the Congress intervenes one way or the other.

And it would be the wrong outcome, in my opinion. We agree on that.

But it wouldn't nullify the amendment, much less the constitution; and it's not going to be retroactive.

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 6:52 pm UTC

cphite wrote:But it wouldn't nullify the amendment, much less the constitution; and it's not going to be retroactive.
It would effectively nullify that portion of the amendment until the order is rescinded, and it would permit the creation of new executive orders (or legislation) which would permit retroactive removal of citizenship -- something that has already happened (and will likely continue to happen).

It would be nullification, because that portion of the amendment is exceedingly clear -- this is only re-interpretation if you don't think words actually matter. It's "re-interpreting" the amendment in the same sense I can re-interpret the first amendment to be pro-censorship.
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Re: Trump presidency

Postby speising » Wed Oct 31, 2018 6:53 pm UTC

to turn this argument around, why is this phrase even in the amendment text? are there people inside the US which aren't subject to it's jurisdiction? and if so, how are they currently regarded under this law?

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Re: Trump presidency

Postby eran_rathan » Wed Oct 31, 2018 6:55 pm UTC

I think that arguing over the birthright citizenship part of the 14th ignores the likely actual target of the republicans - the Equal Protections clause. They get rid of that, and all of the racist/misogynist/bigoted/discriminatory laws are suddenly constitutional.

re: speising - It generally refers to diplomats, who are citizens of their home countries and not generally subject to the laws of the US.
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Re: Trump presidency

Postby bbluewi » Wed Oct 31, 2018 6:58 pm UTC

speising wrote:to turn this argument around, why is this phrase even in the amendment text? are there people inside the US which aren't subject to it's jurisdiction? and if so, how are they currently regarded under this law?

My guess would be that the clause exists to exclude immune diplomats, especially those for which dual citizenship wouldn't be a thing, so the US government wouldn't be forced to grant them US citizenship. They also didn't see this coming.

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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 7:00 pm UTC

speising wrote:to turn this argument around, why is this phrase even in the amendment text? are there people inside the US which aren't subject to it's jurisdiction? and if so, how are they currently regarded under this law?


Diplomatic immunity is a category outside of this, I think.

eran_rathan wrote:I think that arguing over the birthright citizenship part of the 14th ignores the likely actual target of the republicans - the Equal Protections clause. They get rid of that, and all of the racist/misogynist/bigoted/discriminatory laws are suddenly constitutional.

re: speising - It generally refers to diplomats, who are citizens of their home countries and not generally subject to the laws of the US.


They'd also need to get rid of other anti-discriminatory laws, but it's a good deal easier to overturn a law than a constitutional amendment, so the effect would still be large indeed.

But yeah, a large amount of discrimination is constitutional vs non-citizens. Not allowing immigrants from certain countries has definitely been upheld. Definitely a concern if it were applied more broadly.

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 7:04 pm UTC

Also:
cphite wrote:I personally agree with you; but there are plenty of legal scholars who disagree, and no court has ever made a definitive interpretation.
No, there aren't, and yes, they have.

Seriously, where are you getting your information? You'll have to look hard and long to find a constitutional scholar who thinks the first line of the fourteenth amendment is ambiguous -- and citizenship by birth has been held up in the court on *plenty* of occasions.

Like, I can't emphasize enough how wrong it is to think legal scholars find this is contentious or that courts haven't provided definitive rulings over this.
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Re: Trump presidency

Postby ijuin » Wed Oct 31, 2018 7:07 pm UTC

The original purpose of the phrase “subject to the jurisdiction thereof” was to exclude autonomous American Indian communities from being granted citizenship (and thus the right to vote against the mass appropriation of their entire continent by European-descended people).

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Re: Trump presidency

Postby sardia » Wed Oct 31, 2018 7:16 pm UTC

The Great Hippo wrote:Also:
cphite wrote:I personally agree with you; but there are plenty of legal scholars who disagree, and no court has ever made a definitive interpretation.
No, there aren't, and yes, they have.

Seriously, where are you getting your information? You'll have to look hard and long to find a constitutional scholar who thinks the first line of the fourteenth amendment is ambiguous -- and citizenship by birth has been held up in the court on *plenty* of occasions.

Like, I can't emphasize enough how wrong it is to think legal scholars find this is contentious or that courts haven't provided definitive rulings over this.

https://www.npr.org/2018/10/30/66233561 ... enship-wit
Quick fact check on cphite.
Trump's proposal seems to rely on the work of a small but vocal group of conservative legal scholars who argue the 14th Amendment has long been misread... it's kind of a lunatic fringe argument," said Margaret Stock, an attorney at the Cascadia Cross-Border Law Group in Anchorage, Alaska, and a former law professor at the United States Military Academy at West Point, N.Y. "I've been debating folks like this for more than a decade, and they claim that the 14th Amendment's been misinterpreted," she said. "And now they've got a president in office who apparently was fixated on this as well."

Unless cphite is open to the idea that his sources are crazy fringe pundits, it's a lost cause. Is cphite open to receiving criticism on this?

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 7:22 pm UTC

sardia wrote:https://www.npr.org/2018/10/30/662335612/legal-scholars-say-14th-amendment-doubt-trump-can-end-birthright-citizenship-wit
Quick fact check on cphite.
Trump's proposal seems to rely on the work of a small but vocal group of conservative legal scholars who argue the 14th Amendment has long been misread... it's kind of a lunatic fringe argument," said Margaret Stock, an attorney at the Cascadia Cross-Border Law Group in Anchorage, Alaska, and a former law professor at the United States Military Academy at West Point, N.Y. "I've been debating folks like this for more than a decade, and they claim that the 14th Amendment's been misinterpreted," she said. "And now they've got a president in office who apparently was fixated on this as well."

Unless cphite is open to the idea that his sources are crazy fringe pundits, it's a lost cause. Is cphite open to receiving criticism on this?
Wait, seriously?

So, basically, the 14th amendment is the Climate Change debate of Constitutional amendments?

ETA: To clarify, I knew that it was unambiguous, clear, and had been settled definitively in the court of law; I was unaware there was some small batshit fringe trying to argue that we've all somehow managed to misinterpret "subject to the jurisdiction thereof" for the past century or so. Obviously, that small batshit fringe doesn't qualify as "plenty of legal scholars".
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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 7:27 pm UTC

cphite wrote:
The 14th amendment is quite clear. These people are citizens.


I personally agree with you; but there are plenty of legal scholars who disagree, and no court has ever made a definitive interpretation. The courts could go either way; and if they decide down political lines, it's quite possible they support the executive order.


While I generally agree with the rest of your conclusions, I disagree that existing case law is not definitive. We've stuck with our current interpretation for quite some time, and the breadth of decisions encompassed by that is not lightly disregarded. The legal case for the existing definition is quite significant.

This is part of why I think there is an extremely good chance Trump'll be unsuccessful. It's a huge reach, and I don't think his control over the judicial branch is anywhere near sufficient for it to be upheld from the inevitable challenge.

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Re: Trump presidency

Postby Sableagle » Wed Oct 31, 2018 7:36 pm UTC

gmalivuk wrote:... and surely even you haven't been living under a rock so big that you're unaware people can be convinced someone was a criminal whether or not they actually were.
Proving this backfired on me a few years ago.

I said there are some people who'd rather believe Abeer al-Janabi was a terrorist than believe that US soldiers did that to a 14-yr-old girl.

I got the reply I fully expected: "If she was a terrorist, then she was a terrorist, no matter how old she was."

Then I pointed out that nobody had ever said she was a terrorist and that it had been a trap to show how easily people will take the tiniest, weakest scrap of a hint of a shred of evidence and use it to justify a position ...

... and oh, no, they didn't believe that, no. They left that conversation fully convinced she'd been a terrorist, solely on the grounds that some guy on the internet said some people would like to believe she had.

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Re: Trump presidency

Postby Dauric » Wed Oct 31, 2018 7:48 pm UTC

The Great Hippo wrote:I was unaware there was some small batshit fringe trying to argue that we've all somehow managed to misinterpret...


I think this is the Rule 34 of politics. There's -always- some small batshit fringe arguing we've managed to misinterpret any law you want to fit in the slot.
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Re: Trump presidency

Postby cphite » Wed Oct 31, 2018 7:58 pm UTC

bbluewi wrote:
speising wrote:to turn this argument around, why is this phrase even in the amendment text? are there people inside the US which aren't subject to it's jurisdiction? and if so, how are they currently regarded under this law?

My guess would be that the clause exists to exclude immune diplomats, especially those for which dual citizenship wouldn't be a thing, so the US government wouldn't be forced to grant them US citizenship. They also didn't see this coming.


In 1872 the Supreme Court gave their interpretation in the Slaughterhouse Cases that "subject to the jurisdiction thereof" was meant to exclude the children of ministers, consuls, and citizens or subjects of foreign states born within the United States.

Then in 1898 the SCOTUS decided in the case of U.S. v. Wong Kim Ark that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, were subjects of the emperor of China, but have a permanent domicile and residence in the United States" was entitled to citizenship, based on his birth within the US, under the premise that the permanent legal residence of his parents established jurisdiction.

It has never been formally decided by the court that a child born to parents without permanent legal residence should be considered the same; but that has been the common legal interpretation for decades now; and it has never been seriously challenged.

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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 8:11 pm UTC

The idea that the lynchpin of that requirement is the "legal" seems like a bit of a stretch? An assumption, at any rate. It is generally the intent of immigrants, legal or otherwise, to reside here. Same for folks on a visa or what not.

And "since 1898" is a pretty long time from a legal perspective. Even if it's merely relying on precedent, that's an awful lot of precedent. It seems a very thin argument.

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Re: Trump presidency

Postby JudeMorrigan » Wed Oct 31, 2018 8:32 pm UTC

Plyler v Doe is arguably relevant.

This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.

Granted, that's a different clause and the verbiage in that clause is slightly different, but it seems like quite the stretch to me that the same logic wouldn't apply.

(Note that while the case was decided 5-4, the dissent agreed that "I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state." They simply argued that "The Equal Protection Clause does not mandate identical treatment of different categories of persons.")

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Re: Trump presidency

Postby cphite » Wed Oct 31, 2018 8:36 pm UTC

Tyndmyr wrote:
cphite wrote:
The 14th amendment is quite clear. These people are citizens.


I personally agree with you; but there are plenty of legal scholars who disagree, and no court has ever made a definitive interpretation. The courts could go either way; and if they decide down political lines, it's quite possible they support the executive order.


While I generally agree with the rest of your conclusions, I disagree that existing case law is not definitive. We've stuck with our current interpretation for quite some time, and the breadth of decisions encompassed by that is not lightly disregarded. The legal case for the existing definition is quite significant.


Look at how long we've stuck with the interpretation that the 2nd amendment guarantees the right for ordinary citizens to keep and bear arms; and yet there are plenty of people who still argue to this day that it was really meant to apply only to militias, and who would gladly change the common interpretation in regards to law. No change to the amendment would be needed - just the interpretation of the wording.

I completely agree with you that, given the sheer amount of time and established cases, that the common interpretation of birthright law should hold. But as the old football adage goes: There is a reason we still play the games. Nothing is certain, especially in the politically charged environment we have today.

Individual cases obviously have weight; but at the end of the day when the SCOTUS is deciding on the interpretation of an constitutional amendment, they're going to also place weight on their own personal and political views, and their own legal interpretation of the amendment.

This is part of why I think there is an extremely good chance Trump'll be unsuccessful. It's a huge reach, and I don't think his control over the judicial branch is anywhere near sufficient for it to be upheld from the inevitable challenge.


I think that ultimately he will lose, but I think the risk is perhaps a bit greater than you believe it to be. *shrug*

And "since 1898" is a pretty long time from a legal perspective. Even if it's merely relying on precedent, that's an awful lot of precedent. It seems a very thin argument.


We've had private citizens owning guns for far longer than that. You think the anti-gun side would buy that as an argument to keep the right?

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 8:43 pm UTC

cphite, can you point out where the "plenty of legal scholars" who feel this is up to interpretation are?

I don't disagree that this is possible; I just disagree that the current interpretation is in any way controversial or challenged.

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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 8:45 pm UTC

cphite wrote:Look at how long we've stuck with the interpretation that the 2nd amendment guarantees the right for ordinary citizens to keep and bear arms; and yet there are plenty of people who still argue to this day that it was really meant to apply only to militias, and who would gladly change the common interpretation in regards to law. No change to the amendment would be needed - just the interpretation of the wording.


Sure, there's always people who want to reinterpret whatever. Doesn't mean it'll happen.

For the record, I also don't see the courts overturning the individual interpretation of the 2nd amendment anytime soon.

That also might be *easier* that the 14th. Less precedent for some of the strongest support, such as Heller. Still not going to actually happen, though.

I completely agree with you that, given the sheer amount of time and established cases, that the common interpretation of birthright law should hold. But as the old football adage goes: There is a reason we still play the games. Nothing is certain, especially in the politically charged environment we have today.

Individual cases obviously have weight; but at the end of the day when the SCOTUS is deciding on the interpretation of an constitutional amendment, they're going to also place weight on their own personal and political views, and their own legal interpretation of the amendment.


I view it less as odds-based and rather more deterministic. Some things simply have no reasonable avenue to success, and are popular anyways. Some people are, IMO, not motivated by success of the ideology, but by the power which supporting or opposing an ideology grants. Even if someone had a way to look into the future, and ascertain that Roe vs Wade would not be repealed, there would be people who would fight it anyways.

They're not there to win, they're there to fight. Fighting can be profitable, after all. So long as there's money and power to be reaped by waving a banner, it'll get waved, regardless of how reasonable or practical the cause.

We've had private citizens owning guns for far longer than that. You think the anti-gun side would buy that as an argument to keep the right?


Probably not. But the length of the position combined with the popularity of banning all guns makes such a thing largely a pipe dream in practical terms. Legislation to such an extent would be fairly swiftly challenged and overturned as unconstitutional. Smaller plays would need to be made to have hope of success. Going for such a broad change via merely an EO? Obviously doomed to failure.

It is not necessary to convince the entire electorate in order to make a thing impossible to pass. The existence of the belief of a niche few is ultimately not that important to political reality. Not by itself, anyways.

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Re: Trump presidency

Postby Pfhorrest » Wed Oct 31, 2018 9:18 pm UTC

eran_rathan wrote: It generally refers to diplomats, who are citizens of their home countries and not generally subject to the laws of the US.

This is why I brought up earlier that using that clause to accomplish their goals would come at a huge price to them. Do we think the Republicans really want to grant all illegal immigrants the equivalent of diplomatic immunity, making them non-prosecutable for any crimes, just so that their kids can't be citizens?
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Re: Trump presidency

Postby Tyndmyr » Wed Oct 31, 2018 9:21 pm UTC

The analogy they appear to be reaching for is not that of diplomats, but of an invading army, which is also not subject to our laws despite being here(not that the US has invading armies much, but in principle, yknow?)

It is something of a stretch in any legal sense, but it gives you an idea of the anti-immigrant intent.

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Re: Trump presidency

Postby Pfhorrest » Wed Oct 31, 2018 9:31 pm UTC

Are soldiers of an invading army not subject to the laws of the country they've invaded? They've offered no allegiance to those laws, for sure, but will the government of the invaded country (let's say that's the US government in this case) just say "oh you're an enemy soldier, therefore we can't prosecute you for any crimes you did here"?

Like, say Mexico somehow lost its collective mind and send an elite strike force of three guys to conduct some military action in the US. Not knowing that it's a military action, some local police catch them in the act of whatever they're trying to do; say they came in to kill somebody, and did so, and were caught red-handed with their smoking guns and the body. Do the police have to let them go as soon as it's clear that they're actually enemy soldiers, and so not subject to their jurisdiction?
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Re: Trump presidency

Postby sardia » Wed Oct 31, 2018 9:40 pm UTC

Pfhorrest wrote:Are soldiers of an invading army not subject to the laws of the country they've invaded? They've offered no allegiance to those laws, for sure, but will the government of the invaded country (let's say that's the US government in this case) just say "oh you're an enemy soldier, therefore we can't prosecute you for any crimes you did here"?

Like, say Mexico somehow lost its collective mind and send an elite strike force of three guys to conduct some military action in the US. Not knowing that it's a military action, some local police catch them in the act of whatever they're trying to do; say they came in to kill somebody, and did so, and were caught red-handed with their smoking guns and the body. Do the police have to let them go as soon as it's clear that they're actually enemy soldiers, and so not subject to their jurisdiction?

Wouldn't it end up similar to when China "rescued" the spy plane that collided with a Chinese military jet? The chinese can't prosecute them, so they eventually let them go after diplomatic negotiations.

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 9:46 pm UTC

Pfhorrest wrote:This is why I brought up earlier that using that clause to accomplish their goals would come at a huge price to them. Do we think the Republicans really want to grant all illegal immigrants the equivalent of diplomatic immunity, making them non-prosecutable for any crimes, just so that their kids can't be citizens?
While this might be a reasonable legalistic interpretation of what would occur as a consequence of the pro-Trump reading (I don't honestly know), in practice, it would never play out like this. American courts are not legalistic to the point of self-destruction.

For example: Even if the sovereign citizen movement was 100% right, no court of law is going to permit them to be right. Our system can persist with some legal cognitive dissonance; at worst, you hire legal scholars and get them to write several hundred thousand words explaining how up is down and black is white. However, our system cannot persist if our citizens are immune to government statutes and proceedings.

In practice, undocumented immigrants who argued this would be in the same boat as sovereign citizens. You're going to jail regardless of how 'right' you are.

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Re: Trump presidency

Postby jewish_scientist » Wed Oct 31, 2018 11:00 pm UTC

natraj wrote:anyway not on the topic of People Insisting That Shit We're Literally Already Fucking Doing Is Too Improbable To Happen and rewinding a bit to Reason #573 this administration is antisemitic,

in the wake of the pittsburgh shooting pence invited a messianic jewish "rabbi" (who he called "a leader in the jewish community") to give prayers for the synagogue victims.

for those of you who don't know or who are just itching to explain to me how Not Antisemitic this is, messianic "jews" aren't jewish at all (which is tbh one of the very few things all streams of Judaism generally agree on!) but not only are they christians who dress up in jewish culture, they began as a movement for the specific and explicit purpose of pulling actual jewish people away from judaism. they are literally *specifically anti-jewish* christian missionaries whose goal is to convert as many jews as possible,and that's who they think is appropriate to invite to pray for our dead.

It gets worse.
The Washington Post wrote:Jacobs’s remarks weren’t limited to the theme of religious solidarity, however. In addition to denouncing the “hate-inspired shooting at the synagogue in Pittsburgh” and asking God to “comfort all those who are mourning,” Jacobs appealed to the Almighty to favor the Republican Party in the midterm elections next month.

He did not name the individual victims of the Pittsburgh massacre, but named four Republican candidates, including Epstein. “I pray for them and for the Republican Party and its candidates so that they would honor you and your ways, that you might grant them victory in this election,” he said from the stage.
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Re: Trump presidency

Postby Link » Wed Oct 31, 2018 11:04 pm UTC

Tyndmyr wrote:
I just need to understand what it is they want.

Right now it looks like their main goal is to get "Republicans" to replace "Nazis" as the most popular umbrella term for irredeemably evil human scum. Which is a bit unfair to the Republicans who don't support Trump, but what can you do.

In other Trump news, even Kanye realises supporting Big Orange may not have been his brightest idea.

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Re: Trump presidency

Postby gmalivuk » Wed Oct 31, 2018 11:10 pm UTC

cphite wrote:It has never been formally decided by the court that a child born to parents without permanent legal residence should be considered the same; but that has been the common legal interpretation for decades now; and it has never been seriously challenged.
It's telling that the case you found about that is about Chinese parents, as Chinese were basically the only people at the time who didn't just get automatic citizenship upon showing up and asking for it.

"Illegal immigration" wasn't even a thing when the 14th was ratified.
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Re: Trump presidency

Postby ucim » Wed Oct 31, 2018 11:26 pm UTC

Somebody should tell Trump and his lawyer-du-jour that re-interpreting the 14th amendment based on the "subject to the jurisdiction" clause would, ipso facto, make illegal immigrants no longer subject to our laws. They would be immune from prosecution.

They could still be prosecuted, but only after abandoning the idea of the rule of law.

Oh, wait...

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 11:28 pm UTC

Also:
cphite wrote:Then in 1898 the SCOTUS decided in the case of U.S. v. Wong Kim Ark that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, were subjects of the emperor of China, but have a permanent domicile and residence in the United States" was entitled to citizenship, based on his birth within the US, under the premise that the permanent legal residence of his parents established jurisdiction.
As I recall, it was not permanent legal residence, but rather, just permanent residence. Indeed, I think one of the dissenting opinions even pointed out that since both parents were aliens with no path to citizenship (which seems to be the closest you're going to get to 'illegal residence' in this period), this should mean that Wong Kim Ark couldn't qualify as a citizen.
jewish_scientist wrote:
natraj wrote:anyway not on the topic of People Insisting That Shit We're Literally Already Fucking Doing Is Too Improbable To Happen and rewinding a bit to Reason #573 this administration is antisemitic,

in the wake of the pittsburgh shooting pence invited a messianic jewish "rabbi" (who he called "a leader in the jewish community") to give prayers for the synagogue victims.

for those of you who don't know or who are just itching to explain to me how Not Antisemitic this is, messianic "jews" aren't jewish at all (which is tbh one of the very few things all streams of Judaism generally agree on!) but not only are they christians who dress up in jewish culture, they began as a movement for the specific and explicit purpose of pulling actual jewish people away from judaism. they are literally *specifically anti-jewish* christian missionaries whose goal is to convert as many jews as possible,and that's who they think is appropriate to invite to pray for our dead.

It gets worse.
The Washington Post wrote:Jacobs’s remarks weren’t limited to the theme of religious solidarity, however. In addition to denouncing the “hate-inspired shooting at the synagogue in Pittsburgh” and asking God to “comfort all those who are mourning,” Jacobs appealed to the Almighty to favor the Republican Party in the midterm elections next month.

He did not name the individual victims of the Pittsburgh massacre, but named four Republican candidates, including Epstein. “I pray for them and for the Republican Party and its candidates so that they would honor you and your ways, that you might grant them victory in this election,” he said from the stage.
'Tone-deaf' doesn't seem to cut it, here.

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Re: Trump presidency

Postby sardia » Wed Oct 31, 2018 11:31 pm UTC

Wait, I knew a Messianic Jew in college. Are they bad people? He at least had the decency not to convert me.

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Re: Trump presidency

Postby The Great Hippo » Wed Oct 31, 2018 11:39 pm UTC

sardia wrote:Wait, I knew a Messianic Jew in college. Are they bad people? He at least had the decency not to convert me.
I can't imagine any large-scale religion consists entirely of bad people; that being said, it definitely seems a little messed up. At least in the sense of trying to exert a claim on Judaic religious culture while still maintaining the benefits and privileges of Christianity.

I don't know much about it, but at a glance, it looks like it's basically Judaic Cosplay.

(It's probably more complex than that, though.)

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Re: Trump presidency

Postby cphite » Thu Nov 01, 2018 12:02 am UTC

ucim wrote:Somebody should tell Trump and his lawyer-du-jour that re-interpreting the 14th amendment based on the "subject to the jurisdiction" clause would, ipso facto, make illegal immigrants no longer subject to our laws. They would be immune from prosecution.



Nope. Not even remotely; and frankly the suggestion is ridiculous.

The two phrases used within Section 1 of the 14th Amendment are "subject to the jurisdiction thereof" and "within its jurisdiction" and they mean two similar but slightly different things.

Imagine you're a French citizen in the United States - legally or not. You are undoubtedly "within the jurisdiction" of the United States. You are also "subject to the jurisdiction of" France. If you decide to rob a bank in the US, you're going to be arrested and prosecuted according to US law.

Now imagine you're a French diplomat. You decide to rob a bank. You're still going to be arrested and detained - you just won't be prosecuted. Instead, they will contact the French embassy and have them come collect you; at which point you'll probably be expelled and re-arrested and prosecuted in France.

Diplomatic immunity stems from the US having ratified the Vienna Convention on Diplomatic Relations; it has nothing to do with the 14th Amendment. As someone already pointed out up-thread, Plyler v. Doe establishes that "within the jurisdiction" applies to any individual person within the scope of law enforcement.

The grey area that Trump is trying to leverage is whether or not someone here illegally can be considered "subject to the jurisdiction" as well as "within the jurisdiction" - the latter is not even in question. If you're within the United States, you're within the jurisdiction of the United States. Diplomatic immunity is immunity from prosecution; it doesn't give you immunity from the law. Subtle distinction, but an important one.

As for the "lawyer-du-jour" bullshit... if you're too insecure about your position to even acknowledge that another side to the argument exists, that is your own shortcoming. I'm not advocating for Trump, and I've said repeatedly that I disagree with his position.

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Re: Trump presidency

Postby The Great Hippo » Thu Nov 01, 2018 12:23 am UTC

cphite wrote:As for the "lawyer-du-jour" bullshit... if you're too insecure about your position to even acknowledge that another side to the argument exists, that is your own shortcoming. I'm not advocating for Trump, and I've said repeatedly that I disagree with his position.
I didn't take ucim's comment to be directed at you? Maybe I'm wrong. I don't think anyone's accusing you of arguing for Trump -- just that you seem to have a weird interpretation of the 14th amendment in regards to its historical precedence and any controversy surrounding it.

(I'd still very much like to know where these 'plenty of legal scholars' are -- the ones who think the 14th amendment isn't clear -- but maybe you were just exaggerating?)

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Re: Trump presidency

Postby ucim » Thu Nov 01, 2018 1:05 am UTC

cphite wrote:The two phrases used within Section 1 of the 14th Amendment are "subject to the jurisdiction thereof" and "within its jurisdiction" and they mean two similar but slightly different things.
I'm referring to:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens...

(note: the focus is on the person)

Diplomats are not subject to the jurisdiction thereof, and are not the subject of my comment, nor of Trump's "reinterpretation".
Illegal aliens however are subject to the jurisdiction thereof. A French citizen, while in the United States, is subject to the jurisdiction of France, and subject to the jurisdiction of the United States. He's also within the jurisdiction of the United States, which is (pretty much) what triggers the fact that he is subject to the jurisdiction of the United States (if he's not a diplomat). If the French citizen commits an act that is a crime in the US, he can be prosecuted in the US. If he commits an act in the US that is a crime in France, then depending on French law, he can be prosecuted in France even though he committed the act in the US. If this French citizen remains past his visa, or had entered the country illegally, all of the above still holds, by the raw text of the Constitution and all legal interpretations so far.

Now, the argument that children of illegal aliens are not citizens of the US because they are not subject to the jurisdiction thereof, would imply that they are not subject to the jurisdiction thereof. This is of little concern while they are babies, but when they grow up it would be a problem. To wit, that they are immune from the law (or at least from prosecution). It is the logical conclusion of the argument.

This is the thing somebody should tell Trump. As if he cared about logic.

==

Now, the second sentence: No State shall [...] deny to any person within its jurisdiction the equal protection of the laws.

(note: the focus is on the territory)

Any person who is within the (given) State is entitled to equal protection of the laws. This includes citizens, illegal aliens, diplomats, and (probably) corporate persons too, but I'm not sure about that last one. When I'm in Georgia, I am within its jurisdiction, even if I reside in Alabama (or France). That's kind of what it means to be "in" Georgia, in a legal sense. Because I am within its jurisdiction (the territory), I am subject to its laws. If I'm 19, and the drinking age in Georgia is 21, but the drinking age where I reside is 15, I am not allowed to buy alcohol while I am in Georgia, because I am within the territory administered by Georgia. Similarly, if murder is legal where I come from, but is prohibited in Georgia, then while I am in Georgia, anybody who tries to kill me commits a crime, and this clause makes it clear that Georgia is on the hook to protect me from this crime and to prosecute such criminals. Georgia cannot create a law that makes it legal to kill out-of-state visitors but not Georgians.

There's not a lot of room for interpretation here. The words are pretty clear.

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