[thehoff]

Genuine question.

Isn't this statement aimed at citizenship tourism or whatever its called?

I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.

[ithkuil]

If people really want to stop this kind of birth citizenship tourism they must vote for people who will pledge to amend the constitution using the proper democratic process.

But today's climate is so hostile to any kind of rational discussion about how to change laws. One faction just wants to deny citizenship right now to any people they seem not "american enough" while the other faction cannot possibly entertain any change to the current system or else It would concede something to the populist faction

[MisterMower]

I can imagine a compromise that exchanges a path to citizenship for DACA kids for restrictions on birthright citizenship.

What is missing from this debate is the practical side of things. On the one hand, a permanent underclass of non-voting second class citizens is probably not a stable long term equilibrium.

On the other hand, allowing anyone to visit the US to have their baby and automatically receive all the benefits of US citizenship is also not a stable long term equilibrium.

[Breza]

What change would you suggest? A minimum period of time in the country before birthright citizenship applies? What about people who enter the United States illegally and then have a child twenty years later? What about my ancestors, who entered the country legally but never pursued American citizenship?

The 14th amendment was written the way it was to create a bright line that was easy to implement. I'm sure they considered other ways of framing the issue. I think it's brilliant just the way it is.

[ithkuil]

I'm not suggesting a change, I'm suggesting a public discussion about a change.

What I see is one political faction who wants to convince everybody that their desired outcome was in the constitution all along and we're just misreading it. My suggestion is that, if that's really what the people want, then the current democratic process should be followed to amend the constitution in order to clarify whatever rule is unclear. There are good reasons in place for such changes to require a supermajority.

If a supermajority cannot be reached, then let's have a discussion and figure out how to make everybody's concerns heard.

But that's so completely against the current populistic climate where the most boisterous and outraging claims are rewarded; so I know this won't happen; but that's what I think _should_ happen.

[sanderjd]

Yes, the Justices in dissent have an ideological opposition to "citizenship tourism" and are working backward from that to find it to be out of scope of the Constitutional language. But that's wrong, that's not their job.

[seanmcdirmid]

I had a friend from Shanghai who did this. It’s completely legal, you can have a proper tourist visa and be pregnant when you enter the USA, there are hospitals in SoCal that even cater to anchor babies and will express a passport for them so the parents can return with the baby shortly after birth.

That was back in the early 2010s, I don’t think it was prevalent then (I just had too many friends with the money to do that). I don’t think it is common now because Chinese citizens have more confidence about China and so aren’t looking for backup plans anymore.

[wat10000]

The question of whether babies born to foreign tourists are automatically citizens is separate from the question of whether this is desirable.

On the desirability side of things, it's been this way for the entire history of this country (the amendment just codified how things were already done) and it seems to have worked OK. But even if we were to decide that this is bad, it would need to be fixed with an amendment.

[nancyminusone]

Solicitor General Sauer brought up the same point during oral arguments in this case, and he didn't seem to know how prevalent it was either. Seems like the kind of thing you should have figured out before making your case to the Supreme Court.

[fmobus]

Well, it doesn't matter. If the SCOTUS decides that some people, in certain circumstances, are not in jurisdiction of US law, then they have to apply that notion everywhere.

They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.

As for whether people are really doing birth tourism: sure, there might be some cases, but well, they are using something that the legal system allows. If the country feels like it doesn't want that happening, it needs to amend the Constitution.

(Also, let's not kid ourselves that the birth tourism thing is what conservatives care about... People doing that kind of thing are usually rich. The real target are poor illegal immigrants giving birth in the country.)

[JeremyNT]

> They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.

I mean, they shouldn't do this but clearly they can rule however they want with any pretext they want, because they answer to nobody but themselves. Who's going to tell them they can't do something? Who is left to appeal to?

It's a deeply corrupt and undemocratic institution, with virtually unchecked power to rewrite legislation and even the Constitution at a whim.

[Breza]

I'll point out how many cases are decided unanimously. It's quite rare for a case to be decided 6-3 on ideological lines.

[everforward]

They can be impeached, though the efficacy of that is questionable these days.

[rayiner]

Jurisdiction is not some singular concept that means the same thing in every context. You can have jurisdiction over some things in some contexts and not have jurisdiction over other things in other contexts.

[sanderjd]

Surely "subject to the jurisdiction" must mean subject to any jurisdiction, or it is completely meaningless.

[rayiner]

That’s a plausible meaning but it erases the exceptions for diplomats and Indians that everyone agrees exist.

[Breza]

If you do crime, can you be arrested by the local police?

"I have diplomatic immunity! Also I live on a reservation with their own police force. So no."

It's pretty clear that's what the amendment means. The only ambiguous situation I've found is if you're born just inside American waters on your way between foreign countries, but that's a really narrow case.

[sanderjd]

I don't think it does.

[rootusrootus]

In that case, the use of the word jurisdiction in the 14th Amendment is meaningless, too ambiguous to rely on. Unless we think the Constitution should be living, breathing, and adapt to the current political environment. Is that the current conservative viewpoint?

[zamadatix]

Not all originalists will hold the same views on how to deal with ambiguity in the same way not all on the living constitution side agree how ambiguity should be resolved. The takes are usually more on the "how to think about resolving the meaning" side than a "is there any meaning to resolve" side.

That said, the originalist viewpoint is usually more along the lines of "we should seek to resolve that ambiguity in context of when, why, and with which references the framers who wrote it had in mind". Most originalists are unlikely to care what an argument about the current political environment implies.

[rayiner]

Well, a word can have different meanings in different contexts but still have a clear meanings in each particular context. But I agree that “jurisdiction” doesn’t have a well defined meaning in the context of individuals being subject to the jurisdiction of a nation.

In that case, the proper approach is to look at other evidence of what the drafters meant, which is what both the majority and dissents did.

[sanderjd]

This is not the only "proper approach" and what approach is proper is a hotly contested question.

But it doesn't even matter, because in this case it is very clear what the drafters intended.

[rayiner]

It’s not seriously contested anymore. Originalism won and now we are just fighting about how to apply it.

[Telemakhos]

The fourteenth amendment doesn't say "within the jurisdiction" but "subject to the jurisdiction": if you break a window as a tourist, you expect to be prosecuted because you committed a crime within that jurisdiction, but you do not expect to be conscripted into military service or to pay income tax, because you are not subject to the jurisdiction.

Birth tourism is definitely an issue for conservatives worried about China. Here's a 2019 ICE press release on prosecuting someone who was running a birth tourism ring to benefit Chinese government officials: https://www.ice.gov/news/releases/chinese-national-pleads-gu... The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.

[andrekandre]

  > or to pay income tax

dont you have to pay income tax if you stayed and earned money?

[0] https://www.irs.gov/individuals/international-taxpayers/taxa...

[seanmcdirmid]

Even better, Chinese anchor babies born in the USA are subject to pay income tax on income they earn in China. It’s not even clear they can get out of it by renouncing their citizenship when they turn 18 to take Chinese citizenship instead (when they have to decide). I think it’s more trouble than it’s worth now.

[fmobus]

Sorry, that makes zero sense. Why are you picking conscription into military service or obligation to pay income tax as the defining jurisdiction? Why those two things, and not something else?

Specifically, of those two things you selected: the first would be horrendously problematic as the defining jurisdiction, since it would exclude persons ineligible for conscription (women, disabled persons, etc), and the second wouldn't even have the effect you are suggesting, since persons on non-immigrant visas sometimes _are_ subject to income tax. Heck, I don't even reside in the US, am not a citizen, and I do pay income tax on my RSUs. What gives?

As for the Chinese spy/saboteur/etc: treason will still be treason, and it's not like your country was above internment camps.

[derdi]

What if you're in the US on a work visa, so you do expect to pay income tax but don't expect to be conscripted into military service? What's the correct preposition for that case?

[TheCoelacanth]

Still "subject to the jurisdiction of". US law doesn't currently have a law allowing them to be conscripted, and it would be very ill-advised to do so and it would cause a lot of diplomatic backlash, but it certainly could pass such a law if it chose to.

[derdi]

So people on a work visa are "subject to", specifically because of two criteria (income tax and conscription) which must both hold, at least hypothetically? What if the US passes a constitutional amendment explicitly saying that foreigners on work visas cannot be conscripted, would that, by removing the hypothetical, have the implicit effect of making such people no longer "subject to" its jurisdiction?

I think your take on this is overly complex and silly.

[matthewdgreen]

I think this take is overly complex and silly. If you're subject to the laws, that's that. As an exercise, go read the Federal code and put each law that might potentially be applicable to people on a work visa into a pile. I guarantee that pile will be taller than you are by the time you're done. It will certainly be larger than two random examples.

[overfeed]

> The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.

The US seems fully committed not to learn from its past. I suppose the expectations are for expulsions and/or west-coast internment camps for Chinese-Americans should there be a hot war between the US and China. It figures, since the MAGA is all for turning back the clock.

[shimman]

Citizen tourism is not a real concern; good grief why do people care about fringe issues that impacts no one instead of concentration of corporate power, consolidation of wealth, and decreasing rights for citizens?

[outside1234]

Because the people in power don't believe those last things are problems, so they distract us with the former things which actually aren't problems that they present as problems.

[bumby]

The best I can tell, 7-9% of US births are to non-US citizen parents. Maybe you could clarify what exactly you mean by “citizen tourism?”

[shimman]

Ask the person I'm replying to that used that phrase, it's mostly a racist dog whistle that is anti-immigrant.

[bumby]

What terminology would you prefer to describe that real dynamic then? I don’t know that you can hand wave it away when it’s a substantial portion of the real births. I’m not even claiming it’s a problem, just not something that should be superficially dismissed in a good faith discussion.

[CGMthrowaway]

> I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.

As many as 26,000 mothers do it (birth tourism) every year.

CIS analyzed U.S. Census Bureau data to track the number of foreign-born mothers who gave birth in the United States. Researchers cross-referenced those births against federal figures of temporary visitors. They isolated foreign mothers who arrived on short-term visas, gave birth, and did not establish long-term residency in the U.S. CIS concluded that 20,000 to 26,000 births annually are attributable to women arriving on short-term tourist visas specifically to obtain citizenship for their children.