Trump Says He Will End Birthright Citizenship Via Executive Order, But He Can’t

President Trump is now claiming he will end birthright citizenship for the children of undocumented immigrants via Executive Order. He clearly lacks the authority to do this.

In an interview with Axios set to air over the weekend, President Trump says he plans to sign an Executive Order that would end birthright citizenship pursuant to the 14th Amendment to the Constitution via an Executive Order:

President Trump said he was preparing an executive order to end birthright citizenship in the United States, his latest maneuver days before midterm congressional elections to activate his base by clamping down on immigrants and immigration.

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” Mr. Trump told Axios during an interview that was released in part on Tuesday. “It’s ridiculous. It’s ridiculous. And it has to end.”

Doing away with birthright citizenship for the children of undocumented immigrants was an idea Mr. Trump pitched as a presidential candidate, but it is unclear whether he can do so unilaterally, and doing so would be certain to prompt legal challenges.

At issue is the 14th Amendment to the Constitution, which states, “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.”

But some conservatives have long made the argument that the amendment was meant to apply only to citizens and legal permanent residents, not immigrants who are present in the country without authorization. Mr. Trump told Axios that while he initially believed he needed a constitutional amendment or action by Congress to make the change, the White House Counsel’s Office has advised him he can make the move on his own.

“Now they’re saying I can do it just with an executive order,” Mr. Trump said.

More from The Washington Post:

President Trump is planning to sign an executive order that would seek to end the right to U.S. citizenship for children born in the United States to noncitizens, a move most legal experts say runs afoul of the Constitution.

The action, which Trump previewed in a television clip broadcast Tuesday, would be the most aggressive yet by a president elected to office pledging to take a hard line on immigration, an issue he has revived in advance of next week’s midterm elections.

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump said during an interview with Axios scheduled to air as part of a new HBO series starting this weekend. “It’s ridiculous. It’s ridiculous. And it has to end.”

Whether the move is legal or not, Trump seemed to welcome the controversy his comments ignited. The White House has been intent on stoking a debate over immigration as a way to motivate Trump’s base to turn out for midterm elections in which Republicans risk losing the House.

In recent weeks, Trump has also repeatedly called attention to a migrant caravan making its way toward the U.S.-Mexico border, invoking it as a symbol of what he sees as wrong with the U.S. immigration system and blaming Democrats for a lack of action.

Trump, who has long decried “anchor babies,” said he has discussed ending birthright citizenship with his legal counsel and believes it can be accomplished with executive action, a view at odds with the opinions of most legal scholars.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told Axios.

When told that view is disputed, Trump asserted: “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”

“It’s in the process. It’ll happen . . . with an executive order,” he said, without offering a time frame.

An executive order would be certain to spark a constitutional debate about the meaning of the 14th Amendment. It 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.”

Legal scholars have widely interpreted that to mean that anyone born on American soil automatically becomes a natural-born citizen.

In a National Review column last month, for instance, New York lawyer Dan McLaughlin wrote that there are “fair grounds for debate” about the wisdom of the policy but little doubt on the law.

“A proper originalist interpretation of the U.S. Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions,” McLaughlin wrote.

Some other scholars have argued that the case for birthright citizenship is based on a misreading of the 14th Amendment, which was drafted in relation to former slaves following the U.S. Civil War. They argue that the amendment should apply only to children born in the United States to lawful permanent residents, not unauthorized immigrants.

Michael Anton, a former national security official in the Trump administration, recently sought to advance that argument in a Washington Post op-ed, writing that the “notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.”

In the Axios interview, Trump incorrectly asserted that the United States is the only country that offers birthright citizenship.

NumbersUSA, a group that favors reduced immigration, has compiled a list that shows 33 nations grant citizenship to anyone born within their borders.

The list includes Canada, Mexico, Brazil, Argentina and most other countries in Central and South America. The United States and Canada are the only two “developed” countries, as defined by the International Monetary Fund, that have unrestricted birthright citizenship laws.

Here’s the video of the portion of the Axios interview where Trump discusses this:

This isn’t the first time that Trump has brought up the issue of birthright citizenship, it was an issue he raised both during the campaign and after he became President and, before that, an issue that Republicans raised several times after they took control of the House way back in 2010. The idea first came up in the months before the 2010 midterms and even seeming (at the time) moderates like Lindsey Graham were talking about using legislation to redefine citizenship in a way that would stop the children of undocumented immigrants from becoming citizens. I argued at the time that this call seemed to be little more than a cynical attempt to rile up the base on an issue that would go nowhere. That assessment was seemingly proven to be correct when people like John Boehner seemed to support Graham’s position notwithstanding the fact that the idea was going nowhere. Once Republicans took control of the House in 2011, several legislators such as Senator Rand Paul and others, put forward a Constitutional Amendment that would have ended birthright citizenship but, of course, it went nowhere. The idea was resurrected in Congress yet again in 2015 after Republicans took control of the Senate but again went nowhere. Then, during the race for the Republican nomination, Donald Trump included the idea in his immigration plan and it was quickly endorsed by fellow candidates like Lindsey Graham, Bobby Jindal, and Scott Walker.

In those cases, of course, the idea was that Congress could change the 14th Amendment’s definition of citizenship without having to go through the laborious, and most likely doomed, process of amending the Constitution. Under this theory, Congress could simply pass a statute under its authority to set rules of naturalization that redefines who becomes a citizen at birth and who does not. Trump is now saying, without providing any support for the assertion, that he can do the same thing via Executive Order. Whichever way its done, though, whether its legislation or Executive Order, Section One of the 14th Amendment, which says:

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

Just over 30 years after the 14th Amendment was ratified, the Supreme Court dealt with the meaning of this provision in United States v. Wong Kim Ark, 169 U.S. 649 (1898), where it said:

[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

(…)

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.

The argument against birthright citizenship being mandated by the Fourteenth Amendment essentially point down to the idea that undocumented immigrants are not “subject to the jurisdiction” of the United States and therefore their children born in the United States cannot claim birthright citizenship. The problem with this argument, though, is that it makes no logical sense and that it goes against the plain language of the Amendment itself. If it were true that undocumented immigrants are not “subject to the jurisdiction” of the United States, then at least in theory this would mean that such a person could not be charged with committing a crime because the Court lacks jurisdiction over them. Perversely, it could also mean that they could not be deported since the immigration court would lack jurisdiction over them. While that may seem like a stretch, it strikes me as being the logical conclusion of the road down which the argument against birthright citizenship is headed, and no reasonable person would agree with an illogical situation such as that.

Additionally, it’s worth noting that the most recent revision to the Federal law that defines citizenship and naturalization, makes clear that, with certain exceptions that don’t apply here, a child born in the United States is a citizen of the United States from birth regardless of the citizenship of their parents. Specifically, in 8 USC 1401(a), it is made clear that “a person born in the United States, and subject to the jurisdiction thereof” is a citizen from birth. For purposes of statutory interpretation, “subject to the jurisdiction thereof” is taken to mean the same thing it does under the 14th Amendment, and it is clear from the applicable law that this includes children born to undocumented immigrants.

The most recent case from the Supreme Court dealing with the issues raised in Wong Kim Ark came in  Plyer v. Doe 457 U.S. 202 (1982). That case made clear that the protections of the Equal Protection and Due Process Clauses of the 14th Amendment apply to undocumented immigrants and it found, not surprisingly, that the Court’s holding regarding what constitutes “jurisdiction” over an individual did not depend on whether or not a person was here legally or not. Justice William Brennan addressed this most succinctly in Footnote 10 of his majority opinion:

 Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .” (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649(1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term “jurisdiction” was used. He further noted that it was “impossible to construe the words `subject to the jurisdiction thereof,’ in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words `within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons `within the jurisdiction’ of one of the States of the Union are not `subject to the jurisdiction of the United States.'” Id., at 687.

Justice Gray concluded that “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).

The Court’s ruling in Wong Kim Ark and Plyler would seem to be in line not only with the plain language of the Amendment but also, comments made by one of the framers of the 14th Amendment when it was first pending in Congress:

The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated,“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.

This interpretation of the 14th Amendment is supported by legal scholars across the ideological spectrum. For example, James Ho, who served as Solicitor General of Texas from 2008 to 2010 and was appointed to a position on the Fifth Circuit Court of Appeals by President Trump, where he has sat as Judge since January of this year, wrote about this issue in January 2011 when Republicans in Congress were raising the possibility of trying to change the definition of citizenship via legislation:

A coalition of state legislators, motivated by concerns about illegal immigration, is expected to endorse state-level legislation today at the National Press Club in Washington, D.C., to deny the privileges of U.S citizenship to the U.S.-born children of undocumented persons.

This effort to rewrite U.S. citizenship law from state to state is unconstitutional—and curious. Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution.

In the aftermath of the Civil War, members of the 39th Congress proposed amending the Constitution to reverse the Supreme Court’s notorious 1857 Dred Scott v. Sandford ruling denying citizenship to slaves. The result is the first sentence of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The plain meaning of this language is clear. A foreign national living in the United States is “subject to the jurisdiction thereof” because he is legally required to obey U.S. law. (By contrast, a foreign diplomat who travels here on behalf of a foreign sovereign enjoys diplomatic immunity from—and thus is not subject to the jurisdiction of—U.S. law.)

(…)

During congressional debates, both proponents and opponents of the citizenship clause agreed with this interpretation of the 14th Amendment. For example, Pennsylvania Sen. Edgar Cowan opposed the clause precisely because it would extend birthright citizenship to the U.S.-born children of Chinese laborers and other noncitizens who “owe [the U.S.] no allegiance [and] who pretend to owe none.”

Tellingly, Cowan’s racially charged opposition was met with the following response from California Sen. John Conness: “The proposition before us . . . relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. . . . I am in favor of doing so. . . . We are entirely ready to accept the provision proposed in this constitutional amendment.”

(…)

Determining U.S. citizenship is the unique province of the federal government. It does not take a constitutional expert to appreciate that we cannot have 50 different state laws governing who is a U.S. citizen. As a result, courts may very well strike down these state laws without even invoking the 14th Amendment. The entire enterprise appears doomed to failure.

Many Americans have sincere concerns about the rule of law. But there are many tools available to combat illegal immigration. Surely we can do so without wasting taxpayer funds on a losing court battle, reopening the scars of the Civil War, and offending our Constitution and the rule of law.

Additionally, as Axios notes, a number of legal experts have already chimed in to point out how wrong the President is:

  • Dr. Martha S. Jones, author of “Birthright Citizens,” writes that “this issue is not one that has been directly tested or addressed by our courts. And the final interpretation here rests with the Supreme Court…A narrowly tailored EO that rested on the view that the children of unauthorized immigrants are not subject to the jurisdiction of the US (in citizenship terms) and thus not citizens by virtue of Birthright is an argument that can be made…My view is that this sort of wholesale or categorical exclusion is contrary to the spirit of the 14th Amendment which aimed to expand and open a way for citizenship, especially for those who might otherwise be denied because of racism. The case being former slaves.”
  • Neal Katyal, a Supreme Court lawyer, writes, “This is some of the worst lawyering around. Cynical, stupid, unconstitutional, and is just another way for Trump to divide Americans—this time by starting to go for The Full Antebellum. If he does it, we will challenge it. And win.”
  • Steve Kantrowitza top 19th century U.S. historian, writes, “On birthright citizenship, read the debate in the U.S. Senate, Jan. 30, 1866. The framers of the Civil Rights Act — the immediate precursor to the 14th Amendment, and the first place national citizenship was codified — knew exactly what they were doing. They were clarifying the well-understood principle that children born in the U.S. were citizens regardless of the immigration status of their parents. They even understood this to be true for children whose parents would then have been racially ineligible for citizenship, such as the Chinese. The only people excluded from citizenship on this basis were 1) Indians under tribal government and 2) children born to the families of foreign diplomats.”

While there are, admittedly, a handful of legal scholars who take the opposing position, and even take the position that a President would have the legal authority to essentially amend the Constitution and overturn more than 150 years of Constitutional law via Executive Order, the overwhelming position is clearly that the President cannot redefine birthright citizenship via Executive Order, that Congress cannot do it via legislation, and that the only way to redefine it would be for the Court to overrule both Wong Kim Ark and Plyler, which seems highly unlikely even in an era where the Supreme Court is dominated by conservatives, or via Constitutional Amendment, which is even less likely given what would be required to do that pursuant to Article V of the Constitution.

Taking into account the legal authority on this issue, one might wonder why Trump is proposing this idea at this point. One option, of course, is the idea that he really thinks he can do this and that he fully intends to do it. If that’s the case, though, then one wonders why he hasn’t done it yet. Instead of that interpretation, I might suggest that there is something more cynical about what Trump is saying here. Specifically, it’s no coincidence that he is bringing this up at the start of the final week before the midterm elections. As with his paranoid talk about the caravan of refugees in Mexico, this is just another way to rile up the base and get them to the polls. In all honesty, I surprised if Trump actually followed through with this in the end. It’s more likely that, with so many other things he’s put forward over the past year, this is something that will be forgotten once the midterms is over. If I’m wrong, though, and Trump actually does try to do this, it’s clear that it will quickly be challenged in the courts and, when it is, that the Administration will be shut down just as it has been on other issues over the past twenty-one months.

FILED UNDER: Borders and Immigration, Donald Trump, Fourteenth Amendment, Law and the Courts, Politicians, Supreme Court, U.S. Constitution, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mister Bluster says:

    But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.
    Axios

    Next some conservatives will argue that the Second Amendment only applies to white males since blacks were slaves and women pretty much did not exist when the Bill of Rights was amended to the Constitution.
    What’s to stop a future Democratic President from stripping citizenship from all registered Republicans? All of them. Current and future.
    What’s to stop a Libertarian president from extending United States Citizenship to anarchists around the globe?
    What’s to stop a Green Party President from terminating citizenship of everyone but Vegans?

    With the blessing of his domestic terrorist supporters in the Ku Klux Klan and the american Nazi Party, Führer Trump will appeal this to his Kavanaugh Kangaroo Kourt for a rubber stamping!

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  2. Kathy says:

    “What’s the use of a written Constitution, if it doesn’t apply to powerful people who really don’t want it to apply to them?” Mike Duncan

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  3. @Mister Bluster:

    I would argue that there’s virtually no chance that the Supreme Court would side with the President on this issue.

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  4. Stormy Dragon says:

    Who is going to stop him? The republican congress? The republican supreme court?

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  5. KM says:

    One option, of course, is the idea that he really thinks he can do this and that he fully intends to do it. If that’s the case, though, then one wonders why he hasn’t done it yet.

    Because he didn’t have a Court that would side with him. Whoever is spilling this poison into Trump’s ear (because it’s certainly not something that he would have thought of himself, too specific) was smart enough to realize this would go to the SC and they needed to wait till their crony was in place. Now that the GOP caved and put Kavanaugh in, expect to see more of this kind of nonsense that they fully expect their bought-and-paid-for judge to rubber stamp. While I think Trump definitely believes he has the generic power to do whatever he wants because he’s President, somebody is pushing this specific EO notion at this specific time because they think they can get away with it and establish precedence for later asshattery (looking at you, Miller!!)

    One would think a case that has a President essentially nullifying an Amendment at will would be DOA as a matter of course. Sucks to be us, we don’t live in a country where that’s a given anymore. We have to *trust* the GOP to do the right thing….. and so far, they’ve failed at pretty much every turn.

    the Administration will be shut down just as it has been on other issues over the past twenty-one months.

    We can’t assume that anymore. They got their man into the SC – a man that’s on record saying he believes a President can’t be held accountable legally and is more then willing to turn away from Constitutional violations if he happens to like the President in question. The lower courts will tell the Admin to eff off as always and it will inevitably work it’s way up to the SC…. where we’re now going to have to hope Gorusch and Roberts have a lick of sense in their head that will override their republican asskissing instincts. Best case is they refuse to hear the case and let the lower ruling stand but again, we can’t assume they’ll stand up to Trump. We can’t assume any Republican or conservative will have the nerve to not give him what he wants and stand against the Trumpkin hordes.

    This is going to go farther then you think, Doug and it’s going to get even messier if Dems can’t take back anything in a few days.

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  6. gVOR08 says:

    Why do I have the feeling this silliness will be forgotten after the midterms?

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  7. Kathy says:

    If the White House Counsel’s Office is telling him this, they should all be disbarred for offering El Cheeto advised that ought to get him impeached for usurping the authority of the Congress and the states, essentially amending the Constitution by fiat.

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  8. Raoul says:

    The constitution is unconstitutional. Really, let’s not give it the air it doesn’t deserve lest they go after the 13th amendment.

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  9. KM says:

    @Doug Mataconis :

    I would argue that there’s virtually no chance that the Supreme Court would side with the President on this issue.

    Based on what, exactly? Common sense? Rationality? The understanding that it’s pretty damn dangerous to let him do that? Sheer hope?

    Conservatives haven’t exactly stood up to Trump these last 2 years and it’s now a conservative-leaning court with 2 of his choices – one clearly already bought off. Why would you expect the SC to grow a pair and do what the GOP hasn’t been doing for years?

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  10. Mister Bluster says:

    @Doug Mataconis:..I would argue that there’s virtually no chance that the Supreme Court would side with the President on this issue.

    I would be more confident about that if the Court’s seats were filled with the posteriors of a Justice Taylor or a Justice Joyner or a Justice Mataconis instead of Trump’s Rumps.

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  11. Mikey says:

    @KM:

    Why would you expect the SC to grow a pair and do what the GOP hasn’t been doing for years?

    I’m certainly not holding out much hope for that.

    As Russian-American journalist Masha Gessen wrote shortly after Trump’s election: Institutions will not save you.

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  12. Daryl and his brother Darryl says:

    @Doug Mataconis:

    I would argue that there’s virtually no chance that the Supreme Court would side with the President on this issue.

    I would bet there is a 5-4 chance…if you get what I’m saying.
    Justice Boof will write the Majority Opinion.

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  13. Erik says:

    Perhaps some of the other commentators are (slightly) overstating their position that the S.C. can no longer be trusted to do the obviously right thing, but just the fact that they are giving voice at all to their scepticism on that front is alarming. Indeed, our institutions are not saving us

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  14. Kathy says:

    @Mister Bluster:

    Fair point. But if I had to bet, I’d place money on Roberts, at least, siding with the four Liberals.

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  15. Daryl and his brother Darryl says:

    @Erik:

    just the fact that they are giving voice at all to their scepticism

    The SCOTUS gave us Bush43, Citizens United, and Hobby Lobby…and that was all before Justice Boof. Indeed, many attorneys for Progressive causes, such as preserving the environment, are looking at strategies to avoid the SC altogether. Boof made his feelings about progressives crystal clear during his hearing; “What goes around comes around.” If you aren’t skeptical about a guy that tells you he is going to seek revenge, then you are making a mistake.

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  16. PJ says:

    I’m all for it! Then a Democratic President can both reinstate it and then end the 2nd Amendment!

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  17. Resistance Ron says:

    @Mister Bluster:

    Next some conservatives will argue that the Second Amendment only applies to white males since blacks were slaves and women pretty much did not exist when the Bill of Rights was amended to the Constitution.

    Of course, it was the NRA that helped blacks in the south arm and protect themselves from the democrats of the KKK.

    So there’s that.

    And it’s your ilk who want to prevent poor black people from having the means to protect themselves via such means as the special FOID requirement in Illinois and requiring liability insurance for gun owners, both of which have a disparate impact on minorities, preventing their exercise of their second amendment rights.

    I welcome black people exercising their right to bear arms.

    Nice response there, Mr. NPC-Bluster

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  18. Hal_10000 says:

    The Supreme Court will be more than happy to reign Trump in on this. The entire liberal wing would, probably Thomas, likely Roberts, almost certainly Gorsuch. Maybe Alito and Kavanaugh would side with him, but it’s dubious. I almost want to see him try it just to see the resulting hissy fit when “his” judges vote against him.

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  19. KM says:

    @Hal_10000:
    I’ll give you Roberts but why are you confident in Thomas and Gorsuch?

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  20. Barry says:

    @Kathy: Kathy, please notice that your argument is that we still have *one* Justice who wouldn’t *obviously* wipe his @ss with the Constitution.

    And really, the Republic, because the whole point of this exercise is to allow the GOP to redefine American citizenship to allow their utter domination of the country.

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  21. mattbernius says:

    @KM:
    That was my thought too. I think Roberts would vote against it. And I suspect Alito might side against Trump on this.

    Were you thinking Gorsuch would vote against due to the presidential overreach implications?

    Thomas is a wild card here and we just don’t know enough about Kavanaugh yet.

    Thoughts, HavardLaw92?

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  22. Mister Bluster says:

    @Resistance Ron:..Nice response there, Mr. NPC-Bluster.

    I’m not looking for your approval.

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  23. Resistance Ron says:

    Two questions:
    1. If this Amendment does indeed mean Birthright Citizenship, how and why were Native Americans excluded from this?
    2. If Trump can end birthright citizenship because of the Constitution, how is it that Native Americans were granted citizenship via the Indian Citizenship Act, an act of Congress instead of another Amendment?

    And back to the times, “subject to the jurisdiction thereof” was meant to be “construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States.” It could be argued that those here under a visa or illegally are not under the full and complete jurisdiction of the United States, but remain, at least in part, under that of a foreign nation.

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  24. Robert in SF says:

    I wonder if it will come down to the interpretation of, and the authority to interpret, the phrase “and subject to the jurisdiction thereof”.

    If the President interprets the text to mean “and [a] subject to the jurisdiction thereof”, then he can then say, “unauthorized residents” are not subject to the jurisdiction because they are not a subject (like a king’s subject…member of the community) in the jurisdiction..they are here without rights/responsibilities of citizens, and therefore not entitled to pass that on to their children.

    He could rely on the interpretation of the ‘stilted’ or ‘archaic’ nature of the language to completely reinterpret the meaning…and therefore, to fight it, a child would have to be born here, suffer from the lack of citizenship, and then file suit to have standing to sue…that could take years, if the administration pushes back enough…

    Meanwhile, damage is done…

    And I don’t know that this addresses the supposed ‘birthright tourism’ by the more well-off citizens of other countries coming to take advantage of the exception made for them as “legal presence”…

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  25. Just nutha ignint cracker says:

    @Kathy: It’s used for the purpose of applying the principles to those whom the rich and powerful to whom the principles don’t apply want them to be applied to. Government of the elites, by the elites, and for the elites (who, ironically enough, happen to be the only entities who really counted as “people” back in the day).

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  26. Just nutha ignint cracker says:

    @Doug Mataconis: I would have argued that before October 1, 2018, too. Now? Meh… not so much. By the time that the Republicans have named another justice or two? Not at all.

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  27. Moosebreath says:

    OT, but related to how far Republicans will go with underhanded schemes.

    via Balloon Juice, people are expecting fictitious allegations of sexual misconduct against Mueller to be reported tomorrow. Mueller has already heard about them and forwarded information on them to the FBI.

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  28. Just nutha ignint cracker says:

    @Resistance Ron: I think Native Americans would have been considered excluded because those living “on the res,” if you will, are considered residents of sovereign states (or at least pseudo-sovereign ones). ETA: Hence the reason for the Indian Citizenship Act.

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  29. Erik says:

    @Daryl and his brother Darryl: it seems I wasn’t clear: I am deeply sceptical, for all the reasons you cite. At the same time, because normal procedures were followed in appointing the justices hearing those cases, there remained a veneer of legitimacy (uh oh, there’s that word from the other thread, now I’ve done it). With the two most recent appointees this is not the case, and now it will be easy for people to dismiss SC authority, at least on decisions where one of them was necessary to form a majority opinion. It is very concerning to me that thoughtful and level headed contributors here seem to agree with me and are voicing this opinion, because without legitimacy there is no authority, and without authority governments fail and chaos follows. I had been clinging to hope that my concerns were alarmist. Not really beleaving that they were, but hoping. That hope is quickly evaporating, and beyond voting (I already have) donating to democrats (done) and working to get out the vote (yup) I don’t know what else I can do. I’ve been wondering if I am suffering from sunk cost fallacy thinking by not giving up and moving out of the country.

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  30. Alex says:

    I also think it’s worth noting that this statement by Trump is wrong: “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.”

    On the contrary, there are close to three dozen countries that recognize birthright citizenship; and it’s actually the norm in the New World (i.e., countries whose modern populations are mostly descended from European immigrants). The Wikipedia article on jus soli has a pretty map.

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  31. HarvardLaw92 says:

    @mattbernius:

    I think that the precedent and the constitutional verbiage on this one are both so clear that it would be 9-0 against.

    This is theater for consumption by the base dwellers who are too stupid to know it’s theater, nothing more.

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  32. HarvardLaw92 says:

    @Resistance Ron:

    Native American reservations are sovereign entities unto themselves. They weren’t included within the scope of the 14th amendment grant because they aren’t subject to the jurisdiction of the federal government (in theory anyway).

    Next stupid question?

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  33. Joe says:

    @Resistance Ron:

    Sort of consistent with what HarvardLaw92 said, at the time the 14th Amendment was ratified, most native Americans were treated to a greater or lesser extent as sovereign nations and many did not live on reservations. They were generally referred to as the Lakota nation or the Cheyenne nation or the Cherokee nation, and that had a technical meaning.

    Over time, due largely to the encroaching white Americans, that separate nation approach ceased working altogether, so Congress, as they are entitled to do, acted to make native Americans US citizens, though the extent of tribal sovereignty is still a regular subject of legal disputes.

    Any truly “originalist” Supreme Court Justice would know or learn this context. Your questions ignore history.

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  34. Monala says:

    @Resistance Ron:

    Of course, it was the NRA that helped blacks in the south arm and protect themselves from the democrats of the KKK.

    In what alternative history?

    Here’s what actually happened:

    Gun Control Is “Racist”?
    The NRA would know
    By ADAM WINKLER
    February 4, 2013


    Like the KKK, the NRA was also formed right after the Civil War. The organization’s first major involvement with promoting gun laws tainted by prejudice was in the 1920s and 30s. In response to urban gun violence often associated with immigrants, especially those from Italy, the NRA’s president, Karl Frederick, helped draft model legislation to restrict concealed carry of firearms in public. States, Frederick’s model law recommended, should only allow concealed carry by people with a license, and those licenses should be restricted to “suitable” people with “proper reason for carrying” a gun in public. Thanks to the NRA’s endorsement, these laws were adopted in the majority of states.

    Determining who was “suitable” under these licensing schemes was left to the discretion of local law enforcement. Predictably, racial minorities and disfavored immigrants were usually deemed unsuitable, no matter how serious a threat they faced. In 1956, after his house was firebombed, Martin Luther King Jr. was turned down when he applied for a permit to carry a concealed firearm in Montgomery, Alabama.

    The 1960s saw another wave of gun control laws that were, at least in part, motivated by race. After Malcolm X promised to fight for civil rights “by any means necessary” while posing for Ebony magazine with an M1 Carbine rifle in his hand and the Black Panthers took to streets of Oakland with loaded guns, conservatives like Ronald Reagan, then governor of California, began promoting gun control. Black radicals with guns, coupled with the devastating race riots that wiped out whole neighborhoods in Newark and Detroit in 1967, helped persuade Congress to pass the Gun Control Act of 1968. That law barred felons from purchasing firearms, expanded the licensing of gun dealers, and barred imports of “Saturday Night Specials”—cheap, often poorly made guns that were frequently used for crime by urban youth. As one gun control supporter at the time frankly admitted, a close look at that law revealed that it wasn’t really about controlling guns; it was about controlling blacks. And the NRA, in its signature publication, American Rifleman, took credit for the law and extolled its virtues.

    (Quote is from The New Republic)

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  35. Kathy says:

    Remember when the GOP was in favor of the Constitution?

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  36. Gustopher says:

    From the WaPo excerpt:

    President Trump is planning to sign an executive order that would seek to end the right to U.S. citizenship for children born in the United States to noncitizens, a move most legal experts say runs afoul of the Constitution.

    I think we need the names of the so called “legal experts” who believe this doesn’t run afoul of the constitution, and we need to stop calling them legal experts.

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  37. Franklin says:

    From the James Ho quote:

    Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution.

    When it’s Trump and his disciples, they most certainly can and will. They feel no cognitive dissonance. Laws are a tool to beat opponents with. Truth is a liberal conspiracy.

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  38. Kathy says:

    @Just nutha ignint cracker:

    It’s used for the purpose of applying the principles to those whom the rich and powerful to whom the principles don’t apply want them to be applied to.

    Duncan’s quotation is from the epilogue to his book “The Storm Before the Storm: the Beginning of the End of the Roman Republic.”

    I posted here once this started, in part, with norm-breaking within the law, and progressed to actual breaking of the law by the elites. Near the end of the beginning Duncan covers, Sulla wins power in a civil war and promulgates a constitution to safeguard the Republic.

    But Sulla broke just about every law in the process. Not just during the civil war, but afterwards. For one thing, he got the Senate to declare him Dictator for Life. the other major thing he did was publish the infamous Proscription Lists. If you found your name on the list, your life and property were forfeit, and your children and grandchildren were barred from holding public office.

    Does it matter he set up a constitution to safeguard the Republic, or that he stepped down from his post for life after he deemed his work done?

    No. Because what Sulla taught the Romans was that the path to power lay in breaking the laws.

    Those who carried on after his death, wasted no time doing so. For example, Pompeii demanded to be allowed to run for Consul, even though he didn’t meet the age requirement (too young) and he held no prior office, plus other matters as well. Duncan says the list of exemptions required was “a mile long.” Oh, and he hadn’t bothered to disband his legions. Which brings us to another quote I’ve posted here: “Cease quoting laws to us that have swords.”

    Pompeii would go on to form the first triumvirate with Crassus and Julius Caesar. And just like that three ambitious men took over the largest state in Europe, the Middle East and norther Africa, along with its attendant client kingdoms.

    Prior to all this, Rome had been a democracy, with elected offices, term limits, a system of checks if not of balances, a crude separation of powers, and other features found in modern democracies today. it ended up, eventually, as an Empire with one near-absolute ruler.

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  39. Pylon says:

    It probably doesn’t matter to Trump whether this thing flies or not. First, with the present court, it’s got a less than zero chance of success. Second, it will be wildly popular as a mere idea with his base. If he can’t get it done, that’s just the “rigged” system working against the common man.

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  40. Kathy says:

    I just had a horrible thought. Suppose El Cheeto thinks he can issue an order saying that no child born in the US can get a birth certificate unless their parents can prove they’re citizens or legal residents? And/or adding some ridiculous other requirement like being born in a hospital or with the aid of a certified midwife.

    I’m sure that would be 100% unconstitutional, not to mention birth certificates are state matters, but it could muddle things enough to keep the wedge issue alive longer.

    Most likely some idiot friend of his told him some thoroughly wrong right wing talking point (like the one that says the Federal government does not have the power to levy income taxes), and he’s claiming it came form the WH Counsels Office. Or there is a right wing idiot in that office (if it’s staffed at all).

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  41. Hal_10000 says:

    @KM:

    I’ll give you Roberts but why are you confident in Thomas and Gorsuch?

    I’m not 100% confident. But any originalist reading of the Constitution would have to conclude that birthright citizenship can only be changed either by amendment or by Act of Congress. Thomas had tended to trend that way. Gorsuch is shaping up that way.

    We know, at some point, Trump’s judges are going to go against him. And the meltdown will be fun to watch, in an end of times kind of way.

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  42. DRR says:

    What nonsense. The only ruling that needs to be overturned is the one that puts illegal aliens on the same footing as legal immigrants and citizens, Plyer.

    The children born of enemies have been denied citizenship in all countries since the beginning of English Common Law, which was the basis of our own Constitution and relied upon heavily by the early Supreme Courts for precedent.

    In United States v. Rice (1819), 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States because, as was said by Mr. Justice Story in delivering judgment:
    By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.

    The author’s discussion on jurisdiction is ludicrous at best, as there is a clear precedent of “temporary jurisdiction” acknowledged in Common Law and the subsequent Supreme Court rulings relying upon it. When committing the crime of “Improper entry by alien” 8 U.S. Code 1325, an illegal alien will pass under only a temporary custody or “jurisdiction” of the United States Government; be temporarily bound by the laws of the United States, for only such time as the penalties for such crimes may be exacted and they may be returned to their country of origin; and in accordance with such laws only as it chooses to impose. The very nature of the crime, which is a direct assault upon the sovereignty of the United States, can never confer an implied or direct benefit as a result of any criminal act, including the conference of citizenship upon children born of an illegal alien parent. Equal protection was never intended to confer the rights of citizens or legal residents upon the children of foreign born criminals. Any other conclusion is an effective denial of the United States Borders, Immigration laws and the sovereignty of the United States itself.

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  43. HarvardLaw92 says:

    @Hal_10000:

    The problem is much more with the explicit, binary nature of the verbiage contained in clause 1.

    All persons born in the United States. There is no wiggle room there. None. They made it so broad precisely to prevent states from having any option whatsoever to deny African Americans citizenship.

    The other part is a binary trap – either they are subject to jurisdiction, whereupon they’re citizens the second they’re born, or they aren’t subject to jurisdiction – and that opens up a much larger and more problematic can of worms none of the justices (even Frat Boy) are too dense to fail to recognize. They won’t go there. Neither will Congress (mostly because they can’t. Congressional enactments can not change the explicit tenets of the Constitution. That aside, despite appearances they aren’t stupid either. They won’t go there.)

    For better or worse, the framers of the 14th Amendment made it ironclad. Houdini couldn’t get around it. This is theater, and it’ll mysteriously disappear shortly after Tuesday.

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  44. Jeff Montgomery says:

    I’m confused. The statement by Senator Howard, author of the 14th Amendment: “This will not, of course, include persons born in the United States who are foreigners, aliens” seems to support Trump. Aren’t undocumented immigrants “foreigners, aliens”?

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  45. Resistance Ron says:

    Well now I’m confused.
    Do we want originalist justices, like Gorsuch and Kavanaugh, who will actually read the Constitution and rule based on the words in it, or do we want justices who will apply their biases, looking at popular opinion and even foreign laws, when handing down rulings?

    Amazing how you’re all for a literal reading of the Constitution all of a sudden. Trump should appoint more justices to SCOTUS to keep birthright citizenship in place.

    (And yes, there is still an argument for this btw.)

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  46. An Interested Party says:

    This is theater, and it’ll mysteriously disappear shortly after Tuesday.

    This sounds exactly right…much like how we were told that a major middle-class tax cut would be passed before the election, even though Congress isn’t in session…I mean, speaking of Houdini…

    …or do we want justices who will apply their biases…

    As if conservative judges don’t do that…we can start with Bush v. Gore and go on from there…

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  47. One American says:

    @Moosebreath: Balloon Juice?? LOL

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  48. One American says:

    A pen and a phone like barry said!
    Sorry all,I promise I will refrain from commenting next week. I just really don’t care about politics, just anti-corruption.
    Peace Out

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  49. Resistance Ron says:

    Proving that there is a valid debate, here’s Harry Reid in 1993 proposing a law to end birthright citizenship:
    TITLE X—CITIZENSHIP 4 SEC. 1001. BASIS OF CITIZENSHIP CLARIFIED. In the exercise of its powers under section of the Fourteenth Article of Amendment to the Constitution of the United States, the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.

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  50. Jen says:

    @Resistance Ron: Please feel free to read this, from the Justice Department office of Legal Counsel, about that particular legislation.

    Spoiler alert: Any bill that attempts to legislate away birthright citizenship is unconstitutional on its face. It must be done through the Constitutional Amendment process. Any legislator with two gray cells to rub together knows this (or should). Any bill purporting to revoke birthright citizenship is theater. Nothing more.

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  51. mattbernius says:

    @Resistance Ron:
    Hey Jenos,

    First, I appreciate that your commitment to thoughtful and open discussion involves completely ignoring the explanations to your previous post from up thread. Which is too bad, because you could connect the Indian act to Reed’s proposal to suggest there is some precedent for Legislative re-interpretation of the 14th.

    The issue is we’re not getting into a debate about legislative reinterpretation, this is about executive action. Which, if I go back through the archives, I’m pretty sure I can pull you very adamantly arguing was an unconstitutional overreach in the case of the Dream Act. So, I am curious what changed in such a short amount of time to completely reverse your decision.

    Beyond that, I have to say that things must be pretty desperate in grasping-for-straws land if you’re going to cite Harry Reid from 20+ years ago to bolster your argument. I seem to remember that like most right-leaning folks you felt that he got just about everything wrong.

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  52. Mikey says:

    @mattbernius:

    Beyond that, I have to say that things must be pretty desperate in grasping-for-straws land if you’re going to cite Harry Reid from 20+ years ago to bolster your argument. I seem to remember that like most right-leaning folks you felt that he got just about everything wrong.

    Reid later called that proposal the biggest mistake he ever made and the low point of his legislative career, so at least he eventually realized what an idiot he’d been.

    If only Trump and his brain-dead worshipers could reach a similar level of self-awareness.

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  53. Andre Kenji de Sousa says:

    Another important point is that jus soli without restrictions is the norm in the Americas, but in much of the rest of the world you have just soli with restrictions. In this sense, most of Europe is jus soli.

    There is a reason for that.

    And many countries that ended Jus Soli were motivated by racism, nativism, sometimes in connection with sectarian violence.

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  54. An Interested Party says:

    I just really don’t care about politics, just anti-corruption.

    That’s a lie, considering the fact that you support Trump…

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  55. One American says:

    @An Interested Party: why yes,yes I do. He is making America great again.
    Did you see that video of Barry spewing nonsense at some fundraiser somewhere? Look it up, completely horrible and embarrassing. Actually unhinged…..

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  56. mattbernius says:

    @One American:

    He is making America great again.

    Serious and heartfelt question: what does that mean for you. I mean what does a “great” America functionally look like?

    I honestly want to understand that perspective. Or if its easier, what isn’t great about America circa 2016?

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  57. al Ameda says:

    @Resistance Ron:

    Of course, it was the NRA that helped blacks in the south arm and protect themselves from the democrats of the KKK.

    You, and most current conservatives, are so damned cute when you willfully ignore that last 50 years of race and electoral politics in America.

    Yeah, you know, passage of the Civil and Voting Rights Acts, Nixon’s Southern Strategy, the subsequent migration (today you know it as a ‘caravan’) of white southern voters and politicians to the Republican Party.

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  58. Mike Schilling says:

    Kavanaugh owes his seat to Trump. Alito never finds against entrenched authority. Thoma’s wife is a full-on Trumpaloon. If Trump issues his EO and it comes up before the Court, the vote will be somewhere between 5-4 (either way) and 7-2 against.

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  59. One American says:

    @mattbernius: thanks for asking. I have been working every work day of my life since the late 70’s until 2010 my job with a very major corporation was eliminated. Fortunately we had 401ks etc but now 2018 we have a mortgage, 2 brand new vehicle payments, support my aging parents and my grandkids, ETC. It is all about the economy even with $4.07 for gas. Worth every penny.

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  60. mattbernius says:

    @One American:
    Thanks for your response.

    So MAGA for you is a stronger economy?

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