Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
I mentioned to you, and and producer Shannon kind of
uh made it made it clear with his UH with
his bumper music that it's been it's been an interesting week,
the first week for Donald Trump in office.
Speaker 2 (00:15):
And uh, and.
Speaker 1 (00:19):
As Leland Vindert put it when we talked to him
the other day, and has he put it in war Notes,
a certain violence of action by Trump just doing everything
all at once, not messing around. He was clearly prepared
for when he came into office. One of the things
that Donald Trump did that got some tremendous immediate reaction
(00:40):
against him and lawsuits and so on, was an executive
order by which he proposes to have the federal government
no longer recognize birthright citizenship to a small subset of
children born in the United States. And I'm not a lawyer,
(01:01):
but as you know, I'm a legal nerd. I love
reading appellate law, I love reading Supreme Court cases. I
love talking about this stuff, and I love talking about
the law, trying to put aside politics and just thinking
about the law and the constitution. Joining us to talk
about Donald Trump's executive order and more broadly, the issue
of birthright citizenship is Paul Kamonar who is lead counsel
(01:24):
for the National Legal and Policy Center, And Paul's really
good to see you.
Speaker 2 (01:29):
Thanks for doing this. I appreciate your time.
Speaker 3 (01:34):
Thank you for having me.
Speaker 1 (01:34):
Ross, Before we jump into the Trump thing, if you
could give us just a very brief primer at whatever
level you think is useful for a generalized audience like
this on birthright citizenship.
Speaker 3 (01:51):
Sure. Yeah.
Speaker 4 (01:52):
The birthright citizenship as it's called is from the fourteenth
Amendment to the Councilution, which is very simple. That says
that anyone born in the United States or naturalized citizen
is a citizen of the United States if they are
(02:15):
subject to the laws thereof, and there means then they're the.
Speaker 3 (02:20):
A citizen of the United States and the state which
they reside.
Speaker 4 (02:23):
So everybody reads the law provision of the Constitution just
the first part, which says anybody born in the United
States is a citizen in the United States, and they
forget to look at the qualifying clause which says and
subject to the jurisdiction thereof.
Speaker 3 (02:42):
So what does that mean.
Speaker 4 (02:44):
Well, the proponents of birthright citizenship say, well, that means
that anybody in the United States is subject to the
jurisdictions of the United States. But that's not necessarily true
because there's two kinds of jurisdiction. You're subject to the
territorial jurisdiction that will grant you that. In other words,
(03:05):
illegal aliens can be arrested for robbing a bank or
committing murder.
Speaker 3 (03:10):
They're subject to our laws.
Speaker 4 (03:13):
But the way that it's been interpreted originally was subject
to the jurisdiction means, where do you owe your political allegiance?
Speaker 3 (03:21):
What is your political jurisdiction?
Speaker 4 (03:23):
And therefore, everyone that's born in the United States aren't
subject to being a citizen and a christ without subject
to our jurisdictions, such as children born to diplomats that
are here. No, those diplomats don't owe their allegiance to
the United States. Children of Indians up until nineteen twenty
(03:47):
four were born in the United States, but they were
not citizens. It took an Act of Congress to say
that children born to Indians are now also citizens in
the United States because they were subject to the allegiance
of their tribe.
Speaker 3 (04:04):
Therefore, the argument.
Speaker 4 (04:06):
Goes, those illegal aliens from another country, Mexico, what have you?
They owe their allegiance to Mexico, so their children consequently
do as well.
Speaker 2 (04:19):
So let me let me here for sir, go ahead.
Speaker 1 (04:23):
Isn't that unprovable in a sense unless someone is I
mean with a diplomat, we know, But I'm just going
to play Devil's advocate a little bit with you here
because this is a really interesting argument.
Speaker 2 (04:34):
I had been I had been thinking about the.
Speaker 1 (04:37):
Under the jurisdiction of more in the territorial sense that
we're talking about.
Speaker 2 (04:40):
So this is a really interesting argument.
Speaker 1 (04:42):
So what if an illegal alien comes here from Venezuela
and says, I hate Venezuela, I love America. My allegiance
is to America, but I am here illegally.
Speaker 2 (04:56):
Are they subject to the jurisdiction.
Speaker 4 (04:58):
Thereof Yeah, yeah, that may be a closer question because
what you just positive as a scenarios, whether they renounced
their citizenship. They can simply say I don't like that
as a way a lot, but there's a formal way
you have to renounce your citizenship of those other country.
(05:21):
But at the same time, I don't think they can
so easily do that in order to say now they're
subject to or the other allegiance to the United States, because.
Speaker 3 (05:33):
You know, they're not citizens in the United States. They haven't, you.
Speaker 4 (05:36):
Know, or a naturalized citizens, they haven't taken an oath
to have allegiance to the United States. So they may
be in some kind of a limbo area in terms
of where do they owe their allegiance. But for the
most part, this provision would not allow, for example, the
(05:56):
State Department to issue passports to those born to illegal
aliens just because they come in and say, hey, look,
I've got a birth certificate from this hospital in New Jersey.
Well yeah, okay, but you the parents, your birth certificates
(06:16):
are not here in the United States, and you're that
citizens in the United States.
Speaker 3 (06:20):
And it also would.
Speaker 4 (06:21):
Cover, if you read the Executive order, what was called
birth terrorism. I mean women who are pregnant in the
nine month they fly to the United States to have
their baby, fly back home, and then apply for all
the benefits of their child for being a US citizen.
So there, you know, if you go back and look
(06:43):
at how this constitutional amendment was pronounced and established, even those.
Speaker 3 (06:50):
Who who proposed for it, the Senators who.
Speaker 4 (06:54):
Advanced that amendment made it clear that it didn't apply
to to everyone, but only those who who are subject
to the political jurisdiction of the United States say, in
other words.
Speaker 1 (07:08):
Would would you say that getting a green card makes
you subject to all the jurisdictions of the United States?
Speaker 4 (07:20):
Well, yeah, I think I think they would allow that
because it does have well the green card versus naturalized citizen,
you know, because if you are naturalized, then you're okay.
So so there may be some gray areas that that
may be subject. But but so the green card might
(07:42):
might pass muster. But anyway, before that's all sorted out,
you know, the courts are going to decide. As we
already have one ruling by a judge in Washington, right
who ruled uh without even hearing the arguments from the
Trump administration. He just uh and uh, you know, basically
two said says, uh, this execut wire is unconstitutional.
Speaker 3 (08:05):
Boom, yeah, bang the gabble. So that was it.
Speaker 2 (08:08):
I think we thought about. We got about three minutes
left and there.
Speaker 1 (08:11):
The executive order has two different two different sort of
categories that I find interesting and I think they're different
from each other. So one is an illegal alien who
is here and has a baby here, and the dad
is not a citizen or illegal permanent resident and not
in the US. And illegal alien crosses the crosses the
(08:31):
border and has the baby here. So that's category one.
Category two is birth tourism and things like it. Yeah,
where the woman is here legally, not a permanent resident,
but on a legal visa of some kind and has.
Speaker 2 (08:43):
The baby here. Do you and and.
Speaker 1 (08:45):
The judge as you said, so this thing is unconstitutional.
Speaker 2 (08:48):
Do you think those two categories.
Speaker 1 (08:50):
Are equally unconstitutional or equally constitutional, equally whatever, or do
you think there's an important difference if the father is
in the country legally versus not.
Speaker 4 (09:02):
Well, uh, when you say the country person's in here legally, uh,
but you're talking about birth or birth terrorism. Well, yeah,
they're here legally, but they're they're a citizen of France
or Germany or whatever, and they're just coming here, uh,
and then have the baby and go back home. Where
do they owe their allegiance to their other country? So
(09:26):
they're only coming here to have the baby.
Speaker 3 (09:28):
So even though.
Speaker 4 (09:28):
They're here legally, they never less owe their allegiance to
the country from where they came.
Speaker 3 (09:35):
They never intended the state in.
Speaker 4 (09:37):
The United States, but they want to get all the
benefits of their baby having US citizenship show.
Speaker 3 (09:43):
So I think that that is equally uh A.
Speaker 4 (09:47):
Subject to to the Trump executive order, and and and
is it the you know, same category as illegal. It
may seem, well, they're a little bit better because they're
here legally out of terrorist visa or student visa. True,
But when you go to what the basic rationale is,
where do they owe their political allegiance? In both cases
(10:09):
the tourist a person or the student visa and the
illegal area, they don't owe their political allegiance to the
United States.
Speaker 1 (10:19):
We're talking with Paul Kamanar. He is counsel at the
National Legal and Policy Center in LPC dot org. I
have just about a minute left, Paul, has there ever
been okay, has there ever been a federal case in
which a in which a court agreed to accept the
definition of under the jurisdiction thereof that you are making
(10:41):
an argument for right now? Or have they always done
it based on the territorial meaning.
Speaker 4 (10:48):
Well, the case at the other side, sites is this
eighteen ninety eight case where the court did say, if
you're born here in the United States, you're you're a citizen.
But in that case the were lawfully naturalized residents here,
the Chinese of the United States, and the question was
(11:11):
their child was born here, was that child a citizen?
And that was a complicated area because we had at
that time Congress passing the Chinese Exclusion Acts that try
to keep Chinese out from being Americans. So that one
is a special interpretation, and the Court did not really
(11:32):
delve deep into the whole meeting of what does it
mean subject to the jurisdiction of thereof? So I think
the Court will eventually get into that when this case
gets up to the Supreme Court within the next six
months or a year.
Speaker 1 (11:45):
Paul Camon our council at an LPC A LPC dot
org is the website. Thank you so much for your time, Paul,
really interesting conversation. I hadn't thought about that angle of jurisdiction,
so I really appreciate it.
Speaker 3 (11:57):
Sure anytime, all right for having me
Speaker 2 (11:59):
All right, thank you, all right, that's super interesting.
I mentioned to you, and and producer Shannon kind of
uh made it made it clear with his UH with
his bumper music that it's been it's been an interesting week,
the first week for Donald Trump in office.
Speaker 2 (00:15):
And uh, and.
Speaker 1 (00:19):
As Leland Vindert put it when we talked to him
the other day, and has he put it in war Notes,
a certain violence of action by Trump just doing everything
all at once, not messing around. He was clearly prepared
for when he came into office. One of the things
that Donald Trump did that got some tremendous immediate reaction
(00:40):
against him and lawsuits and so on, was an executive
order by which he proposes to have the federal government
no longer recognize birthright citizenship to a small subset of
children born in the United States. And I'm not a lawyer,
(01:01):
but as you know, I'm a legal nerd. I love
reading appellate law, I love reading Supreme Court cases. I
love talking about this stuff, and I love talking about
the law, trying to put aside politics and just thinking
about the law and the constitution. Joining us to talk
about Donald Trump's executive order and more broadly, the issue
of birthright citizenship is Paul Kamonar who is lead counsel
(01:24):
for the National Legal and Policy Center, And Paul's really
good to see you.
Speaker 2 (01:29):
Thanks for doing this. I appreciate your time.
Speaker 3 (01:34):
Thank you for having me.
Speaker 1 (01:34):
Ross, Before we jump into the Trump thing, if you
could give us just a very brief primer at whatever
level you think is useful for a generalized audience like
this on birthright citizenship.
Speaker 3 (01:51):
Sure. Yeah.
Speaker 4 (01:52):
The birthright citizenship as it's called is from the fourteenth
Amendment to the Councilution, which is very simple. That says
that anyone born in the United States or naturalized citizen
is a citizen of the United States if they are
(02:15):
subject to the laws thereof, and there means then they're the.
Speaker 3 (02:20):
A citizen of the United States and the state which
they reside.
Speaker 4 (02:23):
So everybody reads the law provision of the Constitution just
the first part, which says anybody born in the United
States is a citizen in the United States, and they
forget to look at the qualifying clause which says and
subject to the jurisdiction thereof.
Speaker 3 (02:42):
So what does that mean.
Speaker 4 (02:44):
Well, the proponents of birthright citizenship say, well, that means
that anybody in the United States is subject to the
jurisdictions of the United States. But that's not necessarily true
because there's two kinds of jurisdiction. You're subject to the
territorial jurisdiction that will grant you that. In other words,
(03:05):
illegal aliens can be arrested for robbing a bank or
committing murder.
Speaker 3 (03:10):
They're subject to our laws.
Speaker 4 (03:13):
But the way that it's been interpreted originally was subject
to the jurisdiction means, where do you owe your political allegiance?
Speaker 3 (03:21):
What is your political jurisdiction?
Speaker 4 (03:23):
And therefore, everyone that's born in the United States aren't
subject to being a citizen and a christ without subject
to our jurisdictions, such as children born to diplomats that
are here. No, those diplomats don't owe their allegiance to
the United States. Children of Indians up until nineteen twenty
(03:47):
four were born in the United States, but they were
not citizens. It took an Act of Congress to say
that children born to Indians are now also citizens in
the United States because they were subject to the allegiance
of their tribe.
Speaker 3 (04:04):
Therefore, the argument.
Speaker 4 (04:06):
Goes, those illegal aliens from another country, Mexico, what have you?
They owe their allegiance to Mexico, so their children consequently
do as well.
Speaker 2 (04:19):
So let me let me here for sir, go ahead.
Speaker 1 (04:23):
Isn't that unprovable in a sense unless someone is I
mean with a diplomat, we know, But I'm just going
to play Devil's advocate a little bit with you here
because this is a really interesting argument.
Speaker 2 (04:34):
I had been I had been thinking about the.
Speaker 1 (04:37):
Under the jurisdiction of more in the territorial sense that
we're talking about.
Speaker 2 (04:40):
So this is a really interesting argument.
Speaker 1 (04:42):
So what if an illegal alien comes here from Venezuela
and says, I hate Venezuela, I love America. My allegiance
is to America, but I am here illegally.
Speaker 2 (04:56):
Are they subject to the jurisdiction.
Speaker 4 (04:58):
Thereof Yeah, yeah, that may be a closer question because
what you just positive as a scenarios, whether they renounced
their citizenship. They can simply say I don't like that
as a way a lot, but there's a formal way
you have to renounce your citizenship of those other country.
(05:21):
But at the same time, I don't think they can
so easily do that in order to say now they're
subject to or the other allegiance to the United States, because.
Speaker 3 (05:33):
You know, they're not citizens in the United States. They haven't, you.
Speaker 4 (05:36):
Know, or a naturalized citizens, they haven't taken an oath
to have allegiance to the United States. So they may
be in some kind of a limbo area in terms
of where do they owe their allegiance. But for the
most part, this provision would not allow, for example, the
(05:56):
State Department to issue passports to those born to illegal
aliens just because they come in and say, hey, look,
I've got a birth certificate from this hospital in New Jersey.
Well yeah, okay, but you the parents, your birth certificates
(06:16):
are not here in the United States, and you're that
citizens in the United States.
Speaker 3 (06:20):
And it also would.
Speaker 4 (06:21):
Cover, if you read the Executive order, what was called
birth terrorism. I mean women who are pregnant in the
nine month they fly to the United States to have
their baby, fly back home, and then apply for all
the benefits of their child for being a US citizen.
So there, you know, if you go back and look
(06:43):
at how this constitutional amendment was pronounced and established, even those.
Speaker 3 (06:50):
Who who proposed for it, the Senators who.
Speaker 4 (06:54):
Advanced that amendment made it clear that it didn't apply
to to everyone, but only those who who are subject
to the political jurisdiction of the United States say, in
other words.
Speaker 1 (07:08):
Would would you say that getting a green card makes
you subject to all the jurisdictions of the United States?
Speaker 4 (07:20):
Well, yeah, I think I think they would allow that
because it does have well the green card versus naturalized citizen,
you know, because if you are naturalized, then you're okay.
So so there may be some gray areas that that
may be subject. But but so the green card might
(07:42):
might pass muster. But anyway, before that's all sorted out,
you know, the courts are going to decide. As we
already have one ruling by a judge in Washington, right
who ruled uh without even hearing the arguments from the
Trump administration. He just uh and uh, you know, basically
two said says, uh, this execut wire is unconstitutional.
Speaker 3 (08:05):
Boom, yeah, bang the gabble. So that was it.
Speaker 2 (08:08):
I think we thought about. We got about three minutes
left and there.
Speaker 1 (08:11):
The executive order has two different two different sort of
categories that I find interesting and I think they're different
from each other. So one is an illegal alien who
is here and has a baby here, and the dad
is not a citizen or illegal permanent resident and not
in the US. And illegal alien crosses the crosses the
(08:31):
border and has the baby here. So that's category one.
Category two is birth tourism and things like it. Yeah,
where the woman is here legally, not a permanent resident,
but on a legal visa of some kind and has.
Speaker 2 (08:43):
The baby here. Do you and and.
Speaker 1 (08:45):
The judge as you said, so this thing is unconstitutional.
Speaker 2 (08:48):
Do you think those two categories.
Speaker 1 (08:50):
Are equally unconstitutional or equally constitutional, equally whatever, or do
you think there's an important difference if the father is
in the country legally versus not.
Speaker 4 (09:02):
Well, uh, when you say the country person's in here legally, uh,
but you're talking about birth or birth terrorism. Well, yeah,
they're here legally, but they're they're a citizen of France
or Germany or whatever, and they're just coming here, uh,
and then have the baby and go back home. Where
do they owe their allegiance to their other country? So
(09:26):
they're only coming here to have the baby.
Speaker 3 (09:28):
So even though.
Speaker 4 (09:28):
They're here legally, they never less owe their allegiance to
the country from where they came.
Speaker 3 (09:35):
They never intended the state in.
Speaker 4 (09:37):
The United States, but they want to get all the
benefits of their baby having US citizenship show.
Speaker 3 (09:43):
So I think that that is equally uh A.
Speaker 4 (09:47):
Subject to to the Trump executive order, and and and
is it the you know, same category as illegal. It
may seem, well, they're a little bit better because they're
here legally out of terrorist visa or student visa. True,
But when you go to what the basic rationale is,
where do they owe their political allegiance? In both cases
(10:09):
the tourist a person or the student visa and the
illegal area, they don't owe their political allegiance to the
United States.
Speaker 1 (10:19):
We're talking with Paul Kamanar. He is counsel at the
National Legal and Policy Center in LPC dot org. I
have just about a minute left, Paul, has there ever
been okay, has there ever been a federal case in
which a in which a court agreed to accept the
definition of under the jurisdiction thereof that you are making
(10:41):
an argument for right now? Or have they always done
it based on the territorial meaning.
Speaker 4 (10:48):
Well, the case at the other side, sites is this
eighteen ninety eight case where the court did say, if
you're born here in the United States, you're you're a citizen.
But in that case the were lawfully naturalized residents here,
the Chinese of the United States, and the question was
(11:11):
their child was born here, was that child a citizen?
And that was a complicated area because we had at
that time Congress passing the Chinese Exclusion Acts that try
to keep Chinese out from being Americans. So that one
is a special interpretation, and the Court did not really
(11:32):
delve deep into the whole meeting of what does it
mean subject to the jurisdiction of thereof? So I think
the Court will eventually get into that when this case
gets up to the Supreme Court within the next six
months or a year.
Speaker 1 (11:45):
Paul Camon our council at an LPC A LPC dot
org is the website. Thank you so much for your time, Paul,
really interesting conversation. I hadn't thought about that angle of jurisdiction,
so I really appreciate it.
Speaker 3 (11:57):
Sure anytime, all right for having me
Speaker 2 (11:59):
All right, thank you, all right, that's super interesting.
The Ross Kaminsky Show News
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