Birthright Citizenship Reverse Faces Tough Legal Odds

We're the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for eighty five years, with all of those benefits. It's ridiculous. It's ridiculous, and it has to end. In fact, many countries, including Canada, Mexico, Brazil, and Argentina have US style birthright citizenship, and President Trump's efforts are likely to meet stiff resistance in the courts.

Joining me is Susannah Sherriot, professor at Vanderbilt University Law School. Most legal scholars, not all, but most say the law on its face and interpretations show that children born to illegal immigrants are US citizens. Explain the basis of that

legal thinking well. The Fourteenth Amendment to the Constitution starts by saying, 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. So the Fourteenth Amendment says it right there. If you're born in the United States, you are a citizen. Now explain the legal perspective of those who point to those words subject to the jurisdiction thereof and say the Fourteenth

Amendment doesn't cover the children of illegal immigrants. Well, what the purpose of the subject to the jurisdiction thereof language was to codify the common law exceptions to birthright citizenship. So at the time uh that the Fourteenth Amendment was adopted, and in fact, at the time of the American Revolution, common law in England and then eventually common law in

the United States had birthright citizenship. But there were two exceptions. Uh, you were not a citizen if you were born in a country but you were the child of diplomats from a foreign country, and you were not I didn't have birthright citizenship if you were born in a country but you were the child of uh an alien enemies in

hostile occupation. As the common law put it. In other words, foreign diplomats and invading armies were not subject to the jurisdiction of the host country, and so their children were didn't have birthright citizenship. And the purpose of the subject to jurisdiction language was just to make it clear that although most people would have birthright citizenship, those two exceptions would continue to be exceptions. Explain the Supreme Courts position.

It's never addressed this particular issue directly, and uh, the case in which it did address this issue was a well, it did address it pretty directly. It was in eight UM. It was um in a case called Wang Kim Arc and Wang Wang kim Arc had been born in the United States of parents who were Chinese citizens. Now it so happened that, uh, they were legally in the United States. But you know, the Supreme Court never even mentioned that.

The majority opinion never cared whether they were legal or illegal. The majority opinion simply said they were residing in the United States, and he was born in the United States. And they said unequivocally the nothing is better settled than the doctrine the children, even of aliens born in a country while the parents are residents, there are subjects by birth, and the court went out of its way to say

the only two exceptions were for diplomats and invading armies. Uh. And that it it didn't matter why the parents were here, or how long they were here, or even if they were here for a few days temporarily so journeying here, the court said, Uh, the children would still be citizens. UH. So I think that case is in fact directly on point in some ways. UH. Kim Want Kim arc had an even bigger problem than the under the children of

undocumented immigrants today. Under the law of the United States and the law of China at the time, his parents could never have become citizens. Chinese people who were born in China could not become American citizens. So the only way he could become a citizen was because he was born here. So President Trump says he can end birthright citizenship with an executive order? Does that conflict with the administration claims that President Obama could not start DOCCA with

a unilateral action. It does conflict with that, um, and it's I think uh, and even a weaker claim that is uh. Starting DOCCA might have taken congressional approval, but it wasn't trying to change constitutional rules. Uh. What President Trump says he wants to do would be to try to change the constitutional rule, which he couldn't do even if he had Congress with him. That is, even Congress couldn't pass a law stripping uh these American born children

of their birthright citizenship. Assuming that this is not just a plan of Trump's to rev up his base before the midterms, and that he actually does issue an executive order to end birthright citizenship, what kind of challenges would

that face in the courts? Well, I think it would be challenged in mediate ly, um by children who were born here and who would therefore be in danger of having their citizens born here of undocumented immigrants, and who would therefore be in danger of having their citizenship taken away. And I believe that the Attorney General of the State of Washington has already indicated that he would bring suit on behalf of uh the American citizens within his state

who would be affected by this. The state of Washington was heavily involved in and brought several of the cases challenging Trump's travel band order Susannah if it did reach the Supreme Court. By some stretch of the imagination, are there justices on the Court who might support Trump's interpretation. I certainly hope not, because there's really no plausible legal argument in favor of it. This is a constitutional doctrine. It is right there in the Constitution. The text is clear,

the history is clear, the precedent is clear. So it really doesn't matter what your theory of constitutional interpretation is. It all points to the same thing, which is that it would take a constitutional amendment to change birthright citizenship. And just remind us about how much it takes to have a constitutional amendment and why we're not likely to see one. Well, the Congress, both hases of Congress have to propose it, and then it has to be ratified

by three quarters of the states. And it's only the Constitution has only been amended twenty seven times, and ten of those were all at once, so highly unlikely. But um, there has there has been some minority viewpoints through the years about this amendment. What what brings it up every once in a while, Well, I think it's um, birthright

citizenship is not always very popular. There are a lot of things in the Constitution that aren't popular, and from time to time, both state governments and the federal government or will in those governments um try to change them or try to get around them, and usually it ends up in the courts, and the courts say no, all right, thanks so much, Susannah, thanks for joining us at Susannah Sherry,

a professor at Vanderbilt University Law School. Google wants to give eight point five million dollars to charity to settle a consumer privacy class action, but that settlement is being questioned at the Supreme Court. Joining us as Bloomberg News Supreme Court reporter Greg Store who was in at the arguments this morning. So, Greg, the idea of the settlement is that there are a h million Google users, So instead of compensating them directly with about four cents each,

let's give the settlement money to a few charities. What's the objection to the settlement that brought the case to the Supreme Court. The objection is that there's a man named Ted Frank who also argued the case, and he uh uh uh interviewed in the case to say, look, it's not fair that this money that is supposed to go to people like me, uh instead goes to these handpicked organizations, handpicked by the plaintiff's lawyers and by the

company being sued Google. Uh. The he says that the district court should have required uh them, if they're going to settle the case, to come up with some feasible way for sending at least some of the money to the individuals who he says were harmed. Settlements like this where class members get nothing, are really rare. There was researched by a Harvard law professor that indicated only eighteen cases ever where federal courts approve these kind of settlements.

Why did the Supreme Court even agree to hear this case? Yeah, that that is a good question. Yeah, that's that's a research by Harvard law professor William Rubinstein. Um. The the court, you know, is often skeptical about both plaintiffs lawyers and class action lawsuits. And in this case, uh, there is some reason for the court to be skeptical about the intentions of both Google and the lawyers behind the case. And when I say there's reason, there's at least reason

for the Court's conservative members. Uh. They are the ones who are asking the toughest questions about the settlement. Today. If the settlement gets thrown out, it will probably be a decision with UH that is at least primarily coming from the conservative wing of the court. Tell us more about what you gleaned from the justices questions at oral arguments,

well done? It It's actually quite complicated because there's also another question that cuts across ideological lines on the court, having to do with whether this type of suit should have gotten into court in the first place. UH. There's an earlier Supreme Court case a couple of years ago involving the notion of standing, that is, the idea that you have to be injury before you can bring a

case in in federal court. And there are some questions in court today about whether the users who filed this lawsuit over this this um UH thing called referral headers. They claim is basically that UM, when you do a search on the internet on Google and then you click on some website that Google is then sending that information about what your search terms were to the company whose website you you call up UH. And there were some real questions about whether anybody had shown they were harmed

by that practice. And if there are five justices who are are concerned enough, it could be that the court doesn't actually reach the issues in the case about the settlement itself, because the decision in this case could be just what you said, no, no decision basically about the fundamentals, or it could be some you know, earth shaking decision about class actions. It could and you know, and what

you have to do to to settle the case. Um. One of the teresting dynamics here was the two newest justices, brit Kavanaugh and Neil Gorsich Um seemed to be concerned about very different things. So Kavanaugh, uh was didn't seem to be bothered by the standing point. He was more concerned about this settlement where the money was going to justice. Course, it didn't seem to be concerned about the settlement, or

at least he didn't ask any questions about it. But he was one of the ones who was very concerned about whether this case should have been brought in the first place. Uh So, you may have a split among the conservative justices about what exactly to do in this case. What about the Chief Justice John Roberts, because he was the one that some years ago hinted that this these kind of settlements might be interesting for the court to

look at in the right situation. Yeah, he he was someone who did express a lot of concern about where the money was going to. He uh, you know, was skeptical. So one of the groups getting the money is a r P, the Senior Citizens Advocacy Group, and he was uh kind of scratch his head is too as to why uh that made any sense allocating the money to that group did anything to actually deal with the underlying

complaint in this case. UM. He also expressed a concern that that some of the money was going to a group that Google had donated to before. UM. So he certainly seemed to be one of the justices who had wanted to take this case in the first place. Uh, and would like to restrict these sorts of settlements. Greg, just give us a little bit of background about the Supreme Court's attitude in recent years. You might say that

Robert's courts attitude towards class actions highly skeptical. They have uh really scaled them back in a variety of contacts. The one that probably got the most attention was a case involving Walmart and a discrimination suit against Walmart, where they essentially said, um, this loss is nationwide, loss is too sprawling, involved employees from too many different and too many different situations. Um, this is a little bit different because in this case, the company actually likes the ability

to settle these suits. So to the extent you think that this court has a tendency to favor of the companies in these big class action suits. Here's a case where Google is actually urging the court to uphold this settlement. It has managed to get rid of the suit at a relatively small, uh price tag for for Google, and uh, you know, the money actually went to some organizations that Google doesn't seem to mind giving money to. All Right,

thanks so much, Greg. That's Greg Store, Bloomberg News Supreme Court reporter. And one of the objections of the plaintiffs in this case was to the two million dollars going to the attorneys in this case, the class action attorneys. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, Sounds Out and on Bloomberg dot com Slash podcast. I'm June Brosso. This is Bloomberg m HM.