On MAGA And King Canute

'No way he can do that': Legal expert blows up major Trump campaign promise https://t.co/lnIYMbDAPN

— Raw Story (@RawStory) November 10, 2024

Asked about Trump's claim to be able to end birthright citizenship via executive order, Katyal said, "No, last I checked the President can't override the Constitution." 

“The 14th Amendment is as clear as day that there is no way he can do that," the attorney added. "If he tries that, he will lose in court every day of the week.” 

Legal analyst Allison Gill, better known as Mueller, She Wrote, said, "The 14th amendment was also clear as day that an insurrectionist shouldn’t hold office. But here we are."

Please make it stop:

In addition to the naturalization process, the United States recognizes the U.S. citizenship of individuals according to two fundamental principles: jus soli (right of birthplace) and jus sanguinis (right of blood). 

The 14th Amendment of the U.S. Constitution guarantees citizenship at birth to almost all individuals born in the United States or in U.S. jurisdictions, based on jus soli. Certain individuals born in the United States, such as children of foreign heads of state or foreign diplomats, do not obtain U.S. citizenship under jus soli. 

Certain individuals born outside of the United States are born U.S. citizens based on jus sanguinis, which holds that the country of citizenship of a child is the same as that of his/her parents. U.S. Congress is responsible for enacting laws that determine how citizenship is conveyed by a U.S. citizen parent or parents, according to the principle of jus sanguinis. These laws are contained in the Immigration and Nationality Act.

The 14th Amendment put into the Constitution the jus soli doctrine of citizenship followed by the country from independence. Nobody questioned how far back your citizen ancestry went (if you aren’t born a citizen, the citizenship of your parents determines yours. But who established their citizenship? Besides, immigrants were pouring in, and they needed the citizens. You see the problem for the former colonies.).  So getting around sec. 1 of the 14th isn’t as easy as getting around sec. 3.

Let me explain.

The Constitution has two kinds of provisions: those which are self-enacting (like the bill of rights, or the establishment of Congress, the Presidency, and the Supreme Court*) and those which require “enabling legislation.” Example: the VRA, which finally put the full intent of the 15th Amendment into law. No, states could not bar blacks from voting, but they could erect barriers. The VRA was meant to remove those.

You get the idea.

The Supreme Court ruled that sec. 3 of the 14th required similar Congressional action to enforce. Disagree with them as you will, it’s a legitimate point of contention. But sec. 1, rather like the 1st amendment, doesn’t require enabling legislation. What it does, again like the 1st, is limit what Congress can do. Congress can make no law restricting speech or religion (very roughly); and Congress can’t change jus soli citizenship to jus sanguinus. Using the latter for children of citizens born abroad (like my son-in-law, whose parents were in Sweden working for an oil company) just extends the legitimacy of jus soli.

Put bluntly, Trump can’t replace jus soli without Congressional action, because switching to jus sanquinus raises issues of who is a citizen for parental purposes (1st generation? 2nd? Third? One parent? Both? Naturalized?) that can only be settled by legislation. Even the Roberts Court would not rush into that minefield. A court that established Presidential immunity but left the details to the lower courts is not one that will decide all the issues raised by jus sanguinus.

And I remind you this Court refused to settle the issues of “what is an insurrection?” and “what is a ‘participant’?”, preferring to leave those to Congress.

Yes, Trump might declare birthright citizenship over. He might also tell the tide not to come in. MAGA might believe both things were true; but it wouldn’t make either one so. (Even King Canute knew that.)

There’s a lot of crap Trump says he’s gonna do that he simply won’t be able to do. He’s already complaining that it can take two years to get a judicial appointment approved. (Tough shit, your Royal Highness.) If he puts so much pressure on the DOJ that hundreds of attorneys quit, how rapidly will he replace them? My guess is, longer than his term will last. And what of all the prosecutions suddenly deprived of counsel? Yeah, mass firings will work as well as mass deportations. Project 2025 is scary; but it was written by idiots who don’t understand either government or the laws that make it work. On foreign policy and relations Trump will have too much authority; but domestically, there are chains upon those hands he imagines are on the reins.

*I have to add a comment on Elmo and DOGE, because he’s talking like he’s already Secretary of Efficiency and the DOGE already exists. But the Constitution doesn’t establish the Cabinet; those agencies are established by Congress and so far, there is no DOGE. Nor, considering the impossibility of Congress delegating budget authority to the Administration (Art. I won’t allow it), is it ever likely to exist.

Honestly, the public discussion of these “threats” just makes my head hurt. I understand why Elmo is an ignoramus, but why are the reporters just as stupid?

Never mind; that question answers itself.