If Justice Kavanaugh had just dissented wholly, not in part, President Trump’s executive order denying ‘birthright citizenship’ to illegal aliens would now stand as law.
His dissent opinion though, provides congress with a cure.
Congress could amend §1401(a) or
otherwise enact new legislation establishing exceptions to
birthright citizenship for children born to foreign citizens
unlawfully or temporarily in the country. But Congress has
not yet done so.”
He is in error, saying Trump’s executive order “contravenes” 8 USC §1401(a). Otherwise, his dissent could have flipped the entire opinion to a majority for the president.
Here is a clip from a 2011 blog I posted. https://paraleaglenm.com/2011/12/20/an-excellent-discussion-of-natural-born-citizenship-at-mario-apuzzos-blog/ At the end, I add Kavanaugh’s concluding opinion:
Here is a blog post from 2011, when I concluded, same as Justice Alito in his dissent to Barbara, that congress can fix the misinterpretation of the ‘citizenship clause,’ and end the unconstitutional Wong Kim Ark ‘birthright’ citizenship case (1898).
Notice how in the Elk case, the 14th Amendment ‘born or naturalized’ aids in conflating ‘natural born’ with ‘native born,’ as most consider a child born on U.S. soil of alien parents not naturalized per se.
Therefore, they are raising statutory Jus Soli to the level of natural law.
In his work on Conflict of Laws, § 48 (1844), Mr. Justice Story, treating the subject as one of public law, wrote:
“Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established.”
Of course, the conflict is the public law concept of jus soli undermining the ‘reasonable qualification’ that was, since 1790, an integral part of legislated Act requiring aliens to first naturalize before their minor children could become U.S. citizens.
Sec. 3. Uniform Naturalization Law by Congress “And be it further enacted, That the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization; and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States:”
The champions and defenders of the Jus Soli insist that Sec. 3 applied only to children born abroad . . . yet cannot prove this when challenged.
Justice Story’s Commentaries describes the reason for making Naturalization law Uniform through Federal legislation. See http://www.constitution.org/js/js_316.htm
Uniform Law relies heavily on the Plenary Powers Doctrine. The courts in each state were limited to administering oaths and keeping records. Later, that part of Naturalization Law was given over to the Executive Branch. As cases and controversies in suit against the Secretary of State ensued, the courts declared Article III power over naturalization law and the liberal courts began rewriting it.
I recommend Mark R. Levin’s article at http://www.cis.org/CitizenshipSupremeCourt
Congress has the power to ‘fix’ the Wong Kim Ark interpretation of the 14th Amendment, merely by adding a brief definition of ‘under the jurisdiction thereof’ to 8 USC 1401, but our congressmen are, almost unanimously, misinformed and uneducated on the subject.
Indeed, a President Gingrich could address congress and teach them, and encourage them to challenge the SUPREME (or not so supreme) Court.
Here is J. Kavanuagh’s opinion offering the same cure, based on territorial violations, i.e, ‘invasion.’
“All of that said, as noted above, Congress in 1940 and
1952 enacted a statute, §1401(a), that at the time and since
has always been understood to authorize only the four
Wong Kim Ark exceptions. If Congress amends §1401(a) or
otherwise enacts a statute creating new exceptions along
the lines of the Executive Order for children born to foreign
citizens unlawfully or temporarily in the country, such a
statute, as I see it, would pass constitutional muster.7
——————
6Plaintiffs’ only proposed unifying principle for the four exceptions is
what they call the “fiction of extraterritoriality.” Tr. of Oral Arg. 81. The
Court today seemingly embraces that same principle. Ante, at 3, 10
(majority opinion). It is not clear what the “fiction of extraterritoriality”
means here. And it certainly does not support treating the four
exceptions as a permanently closed set. If plaintiffs’ point is to indulge
the “fiction,” to use their word, that certain foreign citizens such as
diplomats should be considered as being back in their home countries for
purposes of birthright citizenship, why does that not also apply to those
in the United States unlawfully or temporarily? And most starkly,
plaintiffs cannot convincingly explain their view that the children of
tribal American Indians are not constitutionally entitled to birthright
citizenship, while the children of foreign citizens unlawfully or
temporarily in the country are constitutionally entitled to birthright
citizenship. See Tr. of Oral Arg. 131–132.
7Nothing in this opinion is intended to suggest how birthright
citizenship should be addressed as a policy matter.
10
TRUMP v. BARBARA
Opinion of KAVANAUGH, J.
*
*
*
For those reasons, to reiterate, the Executive Order does
not violate the Fourteenth Amendment. But the Order does
contravene 8 U. S. C. §1401(a). Consistent with the
Fourteenth Amendment, Congress could amend §1401(a) or
otherwise enact new legislation establishing exceptions to
birthright citizenship for children born to foreign citizens
unlawfully or temporarily in the country. But Congress has
not yet done so.”
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