What does a TRUMP presidency look like?

[The Minsky Moment]

Is it a legal primary source or not Mr. legal documents reader?

It is not a legal primary source.  It is as you say a description of a legal document that a candidate intends to sign if elected. And as described in the press release, that document would have the effect I stated.

[Admiral Yi]

Wouldn't that depend on the court's ruling?  I think your logic is that if the court upheld the executive order they would have to overturn the 14th Amendment and apply it retroactively, regardless of Trump's stated preference to deny it only to future, as yet unborn people.  I'm trying to come up with a relevant example of some law being changed and applied retroactively but I can't.  But maybe citizenship is unique in that it's a status and not an act.

[Baron von Schtinkenbutt]

Your read is how I took Joan's argument.  The Trump EO will claim the 14th doesn't apply to the question of birthright citizenship in the cases Trump and his allies want to eliminate.  If the court agrees (because it will be taken to court), then due to the nature of our legal system it would invalidate every citizenship granted under the interpretation, regardless of what Trump wants or claims to want.

[grumbler]

Aren't there some international laws(?) against making people stateless?

The Trumpeters would argue that it makes no one stateless.  They would be citizens of the country their parents were citizens of.

[The Minsky Moment]

Wouldn't that depend on the court's ruling?

Yes.

And a couple years ago I would have said this thing is political performance art because the legal theory is so absurd the EO would be dead on arrival the second it hit the federal court system. 

But after the crazy last term and the bizarro immunity case ruling, I'm not sure anymore.  There's nothing this Court can do anymore that would surprise me.

[Admiral Yi]

For the record I think the 14th should be overturned.  It's an invitation to game the system.  I don't want some dickhead Chinese millionaire flying to LA two weeks before a baby is due.

[Savonarola]

Personally I think Trump will be an awful president; but I'll admit I was wrong and that he was at least a mediocre president if:

1.)  He isn't impeached.
2.)  No member of his cabinet is charged with a crime.
3.)  The deficit remains under $500,000,000,000 (it's projected level for FY 2017.)
4.)  There isn't a new humanitarian crisis on the scale of Syria anywhere in the world.
5.)  The US doesn't engage in a military intervention that results in a worse crisis than our intervention in Libya did.
6.)  A tariff war does not emerge.

I wrote the preceding eight years ago before Trump was inaugurated as President.  As I've said before this was comically naive, as I had assumed Trump would try to be a (more or less) conventional president.

Today, I don't think there is anything that would make Trump's second term good or even mediocre.  If he's only impeached once and there isn't a riot at the Capitol Building that would be an improvement over his first term.   What standards could you put for such a task?  I'll concede that he wasn't as bad as I feared if:

1.)  Ukraine remains a sovereign nation and not a Russian puppet state.
2.)  We still have fluoride in our water.
3.)  Life expectancy doesn't decrease.
4.)  The bureaucracy isn't so crippled that the Federal Government is unable to respond to emergencies.
5.)  There isn't a war between Israel and Iran.
6.)  He doesn't use the justice department to pursue members of the previous administration, journalist or political adversaries.

[Tamas]

It is very easy to interpret Trump the way his voters interpret him: what the individual voter liked to hear, is true and what Trump will do. The rest is just showmanship and acceptable lies to gain power.

[Admiral Yi]

Yes.

Then chipwich is right and you are wrong.

Stripping existing citizens of citizenship is not an inevitable result of Trump's EO, it's a choice made by the court.

[Josquius]

For the record I think the 14th should be overturned.  It's an invitation to game the system.  I don't want some dickhead Chinese millionaire flying to LA two weeks before a baby is due.

In the 21st century it is pretty sensible not to have pure jus soli. There was a court case in Ireland a decade or two ago involving a chinese family who wanted to live in Britain that led to Ireland getting rid of its version.
Though the US is a pretty different place with it being so vast and wealthy and it's history of being built on immigration. And American citizenship not automatically being a good/neutral thing to have unlike the citizenship of most countries.

But the main issue here isn't so much removing the right for the future. That's a valid move around which there's a potential good faith debate on the pros and cons.
The problem is retroactively stripping it from the children of immigrants - no doubt targeted at brown ones -. This is pretty fucked.


Incidentally on us citizenship how come there's just the one basic American citizenship rather than states doing it as in Switzerland?
Seems like the sort of thing that states would be handling on some level.

[The Minsky Moment]

Yes.

Then chipwich is right and you are wrong.

Stripping existing citizens of citizenship is not an inevitable result of Trump's EO, it's a choice made by the court.

An order that if signed with the content described and upheld by the courts would have the effect of stripping a class of existing citizens of their citizenship.

Bolded for emphasis.

If you look back in the thread you will see I repeated that qualification many times.
I also made the point that EOs are made in the expectation - or at least the hope - that the courts will uphold them, not strike them down.

[Admiral Yi]

An order that if signed with the content described and upheld by the courts would have the effect of stripping a class of existing citizens of their citizenship.

Bolded for emphasis.

If you look back in the thread you will see I repeated that qualification many times.
I also made the point that EOs are made in the expectation - or at least the hope - that the courts will uphold them, not strike them down.

This might be a case of insider lawyer jargon I don't get.

If the court reached a ruling, yes, nobody going forward will get citizenship, but existing citizens will not be stripped of theirs, is that not "upheld by the court?"

[Tamas]

I think upheld by the court means the order isn't thrown back by the courts in its entirety not that the courts specify what the president really meant when signing the order.

[DGuller]

My only hope about Trump's second term is that he'll be a lame duck.  It's well-known that his charisma doesn't transfer to elections where he isn't running.  Given that he won't be running in any more elections, some Republicans out of craven sense of self-preservation might not be the rubber stamp that he needs.  Bush claimed that his re-election gave him a mandate, but not a whole lot came out of it.

I know the counter-argument is that Republicans so far have bent to Trump's will again and again, but I'm just looking for ways to not fall deeper into depression here.

[The Minsky Moment]

I think upheld by the court means the order isn't thrown back by the courts in its entirety not that the courts specify what the president really meant when signing the order.

This.
The courts can do the latter but in this case there isn't a conceivable way for the court to hold that birthright citizenship exists constitutionally for people before the EO is signed but magically disappears the moment Trump signs the EO.

If the courts upheld the first part of the order as described - then it would cancel birth citizenship for all children born to undocumented aliens regardless of when they were born. The rest is basically window dressing.

The key here is that EOs can do different things and the one proposed here would do two of those things.  One is that an EO can announce the executive branches view on a how a constitutional or statutory provision should be interpreted. Another is that it can set forth enforcement priorities and how laws will be enforced.  Both are subject to judicial review because Justice Marshall and Marbury v Madison said so. But how the judicial review works is a little different in the two cases.

If the EO announces an interpretation of the meaning of a constitutional provision, then the effect of judicial review goes beyond the scope of that EO itself because we have a common law style precedential system.  Let's say the President issues an EO saying the First Amendment means "X".  If the Supreme Court upholds that, then that becomes constitutional law. If the President changes his mind and wants to the First Amendment to mean "Y' that's too bad.  The Court has already held "X' and "X" it will stay unless and until the Supreme Court overrules the precedent.

If on the other hand an EO announces an enforcement priority or policy, then the nature of the judicial review is more limited.  The courts are passing on whether that policy is legal, but if they rule in favor of the administration, then it just means that the President *can* do it, but not that he has to do it that way.  He can always withdraw or change the policy, as long as the change is to something else that is legal.

Applying these concepts to this specific Trump proposal:

The first element of the proposal - the one Trump says is endorsed by "scholars" is to interpret the 14th amendment to mean that birth citizenship does not apply to children born in the US to undocumented immigrants. If the Court accepts that reading, it becomes constitutional law.  If the president later changes his mind, too late - the Court has made its ruling.  And there is no issue of retroactivity because such a ruling means that the affected individuals were never citizens to begin with, and that the government had simply been making a giant mistake for over 150 years treating them that way.

If the first element of the proposal is not upheld by the courts, then the rest automatically fails.  You can't deport citizens.

If the first element of the proposal is upheld, the second would be obviously upheld as well because if undocumented aliens are not citizens they can be deported.  The only question is whether it would be lawful in light of the immigration statutory scheme for the administration to choose as a matter of discretion to only enforce deportation against later born illegals as opposed to those born earlier.  If the courts uphold that policy it means Trump could implement it this way.  But he could always change his mind later and deport all of them regardless of when born

Let's say the courts rule in favor of Trump on that issue and Trump never changes the EO.  Does that mean the legacy former citizens are safe?  No it doesn't.  First, they still are non citizens and lose their rights as citizens, including (no doubt entirely coincidentally) the right to vote. Second, it would just mean that they would not be deported pursuant to the EO. But since they are non citizens without documentation or other legal right to stay, they can still be picked up at any time by ICE pursuant to its inherent statutory authority.  That's what I meant at the beginning when I said facetiously - first they make them non citizens, then they deport.