DavidOdden

But he just did! So I don't understand your position that it is impossible.

The most significant first salvo in Trump’s attack against foreigners is his interpretative directive regarding “citizen”, which says that

            Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
One has to fill in some gaps to make this argument complete. These points will no doubt be explicitly argued when the case reaches the appeals courts. Para 6 of the TRO against the order only gives a simple statement of why plaintiffs are likely to succeed. For our temporary entertainment (or, in anticipation of a forthcoming legal apocalypse), we can consider the probable logic that can be applied to this case.

The key constitutional clause is that “All person 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”. Exceptions have long been recognized by reference to English law for a definition of “natural-born British subject”, whereby one is not a natural-born British subject. First, “Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien” and “Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien”. This defines the common law presumption that underlies the US Constitution.
In the Slaughterhouse Cases (16 Wall. 83 U. S. 72), the court makes a distinction between citizenship in a state, and citizenship in the US:


              The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

 
That ruling also states the standard interpretation of ‘subject to its jurisdiction’:
            The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

 
In US v. WAK, the court dials back this position a bit, noting that “neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest…”, referring to Minor v. Happersett (1874), 21 Wall. 162, 88 U. S. 166-168. Instead, 
            Allegiance and protection are, in this connection…reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents.

 
Here is the ticking time bomb:
            As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
The court in US v. WAK then claims that

            The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
It is uncontroversial that there exists a traditional definition of those who are not natural born citizens (a fatal lacuna in Roe v. Wade). The core of the “subject to jurisdiction” argument starts at p. 169.

It is utterly uncontroversial that every alien who is present in the US, other than a POW or diplomat, is subject to the laws of the US. Were that not the case, and were Trump’s assertion about offspring of aliens who are either illegal or temporary not being “subject to US jurisdiction” true, that would mean that offspring of such persons are, like POWs and diplomats, immune from criminal prosecution of civil action – a ludicrous assertion. That is the difference between those subject to jurisdiction, and those immune to jurisdiction.

Whenever the court utters an unprincipled statement like “For the purposes of this case, it is not necessary to solve these doubts”, you can predict that such failure to identify a principle will come back to bite you, or more precisely, us. There is a strong argument from tradition that “subject to the jurisdiction thereof” has an extremely narrow application. I predict that the order will be obliterated, possibly even by SCOTUS explicitly reaffirming the meaning of “subject to the jurisdiction thereof”. Still, nothing is certain with this court.

The most significant first salvo in Trump’s attack against foreigners is his interpretative directive regarding “citizen”, which says that

            Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
One has to fill in some gaps to make this argument complete. These points will no doubt be explicitly argued when the case reaches the appeals courts. Para 6 of the TRO against the order only gives a simple statement of why plaintiffs are likely to succeed. For our temporary entertainment (or, in anticipation of a forthcoming legal apocalypse), we can consider the probable logic that can be applied to this case.

The key constitutional clause is that “All person 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”. Exceptions have long been recognized by reference to English law for a definition of “natural-born British subject”, whereby one is not a natural-born British subject. First, “Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien” and “Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien”. This defines the common law presumption that underlies the US Constitution.
In the Slaughterhouse Cases (16 Wall. 83 U. S. 72), the court makes a distinction between citizenship in a state, and citizenship in the US:


              The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

 
That ruling also states the standard interpretation of ‘subject to its jurisdiction’:
            The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

 
In US v. WAK, the court dials back this position a bit, noting that “neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest…”, referring to Minor v. Happersett (1874), 21 Wall. 162, 88 U. S. 166-168. Instead, 
            Allegiance and protection are, in this connection…reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents.

 
Here is the ticking time bomb:
            As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
The court in US v. WAK then claims that

            The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
It is uncontroversial that there exists a traditional definition of those who are not natural born citizens (a fatal lacuna in Roe v. Wade). The core of the “subject to jurisdiction” argument starts at p. 169.

It is utterly uncontroversial that every alien who is present in the US, other than a POW or diplomat, is subject to the laws of the US. Were that not the case, and were Trump’s assertion about offspring of aliens who are either illegal or temporary not being “subject to US jurisdiction” true, that would mean that offspring of such persons are, like POWs and diplomats, immune from criminal prosecution of civil action – a ludicrous assertion. That is the difference between those subject to jurisdiction, and those immune to jurisdiction.

Whenever the court utters an unprincipled statement like “For the purposes of this case, it is not necessary to solve these doubts”, you can predict that such failure to identify a principle will come back to bite you, or more precisely, us. There is a strong argument from tradition that “subject to the jurisdiction thereof” has an extremely narrow application. I predict that the order will be obliterated, possibly even by SCOTUS explicitly reaffirming the meaning of “subject to the jurisdiction thereof”. Still, nothing is certain with this court.

The narator makes a substantial (fatal) error in identifying the “fundamental question”, as being about “scarce resources”. Objectivism clearly understands that “scarce resources” is a distraction, this guy incorrectly thinks of government as a tool of Divine Macroeconomics. The central question is based on the fact that man’s actions are not metaphysically given, then are chosen (with the concommitant concept of “free will” – chosen means “freely, optionally selected”). From this fundamental error in fundamentals, we predict that the discussion will rapidly go off the rails.

 
Divine Macroeconomics is a theory with an invalid unchecked premise, that all actors are rational. Actually, quite a number of people are just plain nuts. The primary concern therefore should be determining “what do we do about people who just plain nuts?”. Some people who are nuts are benignly nuts (sleeping bag guy under the freeway), but others are seriously dangerous to others. This defines the primary job of law, which is to classify “allowed” from “disallowed” actions.

 
This particular spinning of the Non-Aggression Principle as being about “initiating conflicts” is offensively wrong even from the anarchist perspective. “Conflict” is not the same as “force”. This is so obvious and well known that I am offended that he initiated conflicts by forcing me to say that. He follows by making ludicrous false statements about “the law of the jungle”: if Friday takes your stuff, you “cannot complain” because everybody is free to initiate conflicts. Here’s a hidden premise: there’s a list of circumstances under which you can complain. That’s just sloppy thinking. Under all models of government, you can complain, that is an axiom from Objectivism that actions are chosen. You can complain. Under a rights-respecting government, there are different consequences to complaining, compared to under anarchy.

By expanding the swamp through creation of yet another redundant federal bureaucracy, he will clearly Make America Great Once More.
Actually, the remit of CBP is extremely broad, extending way beyond taxing imports. For example, that lengthy wait to get back into the US is one of the duties of CBP; they are charged with keeping undesirables out, they enforce laws against importing prohibited items including importing undesirable non-human life forms that threaten US agriculture, they combat fraud. They do not currently confiscate seditious literature but in the future when such imports are outlawed, they would be in charge of restricting the flow of forbidden ideas. By creating yet another separate agency focused only on tax-collection, confiscation of money will be more efficient, which will make us Greater (it will embiggen the nation).
Congress will have to get in line with this proposal, since they actually passed a law (19 USC 1505) handing that authority to CBP. This raises an alternative possibility for greatness via efficiency: generalize the IRS into RS. They already are in charge of taking money away from people in the US, it could be simpler to merely transfer CBP tax-collecting authority to the IRS.

By expanding the swamp through creation of yet another redundant federal bureaucracy, he will clearly Make America Great Once More.
Actually, the remit of CBP is extremely broad, extending way beyond taxing imports. For example, that lengthy wait to get back into the US is one of the duties of CBP; they are charged with keeping undesirables out, they enforce laws against importing prohibited items including importing undesirable non-human life forms that threaten US agriculture, they combat fraud. They do not currently confiscate seditious literature but in the future when such imports are outlawed, they would be in charge of restricting the flow of forbidden ideas. By creating yet another separate agency focused only on tax-collection, confiscation of money will be more efficient, which will make us Greater (it will embiggen the nation).
Congress will have to get in line with this proposal, since they actually passed a law (19 USC 1505) handing that authority to CBP. This raises an alternative possibility for greatness via efficiency: generalize the IRS into RS. They already are in charge of taking money away from people in the US, it could be simpler to merely transfer CBP tax-collecting authority to the IRS.

I'll play along: Rahi Digar.

There is not even evidence of no evidence of forced labor in Canada or the US. Is there evidence of evidence of US companies subcontracting labor in China? The existing law prohibits import of goods produced via forced labor or labor by minors, regardless of who owns the company. I am always trying to figure out your position, it now seems that you want to change to a system of tariffs rather than prohibitions, but also apply the tariffs at a nation-wide basis (i.e. anything from China, presumably also Vietnam, the Philippines, Burma, Bolivia, Chad, India, Kenya, Russia, Belarus and so on.
Of course, high-enough universal tariffs could liberate us from income taxes, as Trump has promised.

Applied consistently, prohibition of imports from less-free nations would effectively prevent all imports to the US, which may be Trump’s plan. The distinction between “prohibited” and “prohibitive” is spurious. There have been flippant proposals to legalize all drugs or other vices and then “tax the hell out of it” – like Norwegian alcohol taxes. Gasoline taxes in the US (and Norway only way more so) are generally punitive, being a method to “prohibit” driving without actually outlawing internal combustion engines. Raising taxes on imported goods is one way to make sure that no other country has an “advantage” over the US, thus protecting the US from outsiders.
Existing US and EU law already incorporates a restriction on “un-free trade”, where goods imported to the US or the EU at an actually unfair price owing to government subsidy are subject to a tariff, and this is one of the few legitimate uses of import tariffs. The reason why we don’t trade with Cuba is mainly political inertia and the fact that Cuba used to be an existential threat to US security (you remember the Cuban missile crisis, I assume). The majority of US trade sanctions are directed at specific evil persons and not the entire nation, for example there is a list of individuals in Somalia who have aided terrorist organization or who have engaged in acts of violence against civilians; restrictions on imports from Sudan are aimed now at the military overthrow of the government, again not “any trade with Sudan”. Sure, France is less free that the US because it represses “hate speech”, but penalizing Americans for the sake of the speech interests of the French is quite literally self-sacrificial.

Kagan is wrong about elevating the power of SCOTUS over other branches, what the court did was deflate the improperly expanded power of POTUS, to rewrite law without congressional approval. The Constitution grants the power to write laws to Congress, and only to Congress. Yet under Chevron, if POTUS comes up with an interpretation of a law that is not blatantly inconsistent with what Congress said, he has the power to effectively rewrite the law, without Congressional approval. The Constitution does not give POTUS the power to perform the interpretive job assigned to the courts. The Constitution grants the three branches equal and balanced power, but not identical subject matter powers – where under Chevron, the courts allowed POTUS to usurp the role of Congress, to write laws, and the courts, to interpret the laws enacted by Congress.

I do not understand this statement. Nobody in this thread has shown anti-Objectivist views, so I surmise that you must be talking about the authors at Cato or Scotusblog. Out of argumentative generosity I will assume that one of those authors harbors and promulgates anti-Objectivist views. So what? It is never necessary to “be cautious” about reading material that you disagree with, or a person who you disagree with. At worst it is a waste of your time, and at best it may give you material to sharpen your own views, in case they are wrong. Avoidance of knowledge is not a virtue.
As should be well-known in these circles, Chevron is one of the worst judicial doctrines of the past century, up there with Filburn v. Wickard. The linked blog entries are fairly neutral and accurate, though the Cato entry is more supportive of the predicted outcome. In my opinion, the blogs are correct.

I believe this is the essential difference in our positions. My concern is whether a government operates according to the proper nature of government (placing the use of force under the control of objective law). Your concern is only whether a government is a threat to the people living under it.

I believe this is the essential difference in our positions. My concern is whether a government operates according to the proper nature of government (placing the use of force under the control of objective law). Your concern is only whether a government is a threat to the people living under it.

I understand that Putin will also demand that Alaska be returned to Russia. King Felipe plans to demand the return of California, but they have less enforcement power.

There is a Latin expression that covers this well: reductio ad absurdum. I can't ascertain whether you do or do not assume what you seem to say you assume, but as a policy, I find it likely that you are making that assumption, also that you are sufficiently self-aware that you know whether you are making that assumption.

There is a Latin expression that covers this well: reductio ad absurdum. I can't ascertain whether you do or do not assume what you seem to say you assume, but as a policy, I find it likely that you are making that assumption, also that you are sufficiently self-aware that you know whether you are making that assumption.

There are hundreds of thousands of victims of gun violence, innumerable victims of drunk driving, thousands of victims of hate crimes, uncountable numbers of people murdered or maimed by distracted driving, and so on. Obviously the government is not doing its job to Keep America Safe. It is not enough to just make it a crime to drive drunk, shoot people, commit various crimes because of a person’s sex, race of religion, not to fine people for using their phones while driving. We need to get to the root of the problem, which is that people are allowed to have guns, consume alcohol, associate with bigots or possess cell phones in the first place. A national ban on guns, alcohol, social media and cell phones would greatly alleviate these atrocities. Those who support the First, Second and Twenty First Amendments have their heads up their asses (individually and severally). “Rights” are meaningless without assurances of safety.

 

Evasion of fundamentals renders this discussion pointless. The most important fundamental which has been evaded here is the difference between US immigration law, and the floating abstraction of “security”. Let us take a non-immigration issue, the fact that any person in the US can easily transport 25 gallons of gasoline in glass jugs in the trunk of their car, on public roads. And doing so poses a real threat to the safety and security of those who happen to be in that vicinity. This lies at the extreme edges of the concept of “initiation of force”, because this act is dangerous but not per se deliberate use of force to override the will of others. It is a reckless act. For the sake of public safety, we could outlaw such an act as having a significant danger potential. Similar reasoning is commonly used to prevent potential dangerous actions by businesses (the restriction can selectively apply to businesses because of the Commerce Clause whereby the federal government gets to crack down on businesses in a way that it cannot crack down on individuals, you may well reason that individuals should be subject to the same kinds of restrictions that are imposed on  businesses – we’re moving in that direction, anyhow).
In order to protect the public against the threat of individuals acting dangerously, and following the premise that security needs can override individual rights (freedom of action), police should then be authorized to arrest and inspect any person or vehicle for the presence of such dangers. Under a strict police state, the detainee can be detained indefinitely until, for example, the police are convinced that the person is not transporting dangerous materials in contravention of the law, or in a more “libertarian” police state the police are convinced that they have no intent to use the goods in a force-initiating manner. The thing that nobody argues for is that the police should have the power to halt all movements, simply because it is imaginable that someone intends to initiate force via their movements.
The immigration bottleneck has not one thing to do with real issues of security, it is not like passing through the TSA inspection to get on an airplane. The purpose of the immigration choke-point is to limit the number of non-citizen individuals coming into the country. The rationale is not that Mexicans or Indians are inherently dangerous and highly likely to violate the rights of individuals, it is simply that allowing Mexicans and Indians into the US dilutes the labor pool, making available an expanded labor market which thus makes it possible to reduce labor costs. Exclusion of foreigners thus protects the “right” of citizen workers to demand a higher wage, because the government regulates the supply of cheap labor.
Questions of “security” play virtually no role in determining who gets to enter the US. The quota system is the primary determinant of that question.

By way of context, the cat meows that
I think you are missing a golden opportunity here. Observe that the cat arrogates for himself the right to speak for all women, as well as the right to declare who is a woman. Since the criteria for womanhood or manhood are entirely subjective and since self-declaring to be in a particular demographic allows you to speak on behalf of that demographic, you can declare yourself to be some kind of woman, and assert “having no problem” with any arbitrary sub-group of things invading the prerogatives supposedly set aside for that demographic. We can use the labels on the doors as an indication of the demographic that has a right to that space (no idea how to handle the spaces labeled “family”). You can set your own standards of welcoming, and your own demographic labeling standards. This applies to sex, age, race, religion, really anything that you can imagine. The power of arbitrary declaration, reality-be-damned, is quite awesome, and is available to everyone.

He missed an important but subtle detail about the $4 wage problem. Hiking pay rate from $1 a day to $4 has unexpected consequences. It’s only a possible benefit for the few people with skills desired by western manufacturers. It is a great boon for the few who are employed in such positions, but it is terrible for the other 95% of the population who have incomes in the $1 range. The money supply expands, local prices skyrocket to balance the money supply and increased demand for goods, now a pint of milk becomes unaffordable for the 95%.
In a free market, wages slowly increase a bit, as labor becomes more valuable and employees can reasonably demand greater compensation. Using force to short-circuit the natural process of increasing worker skill (value, ergo wage) will disable most workers in the economy who are not lucky enough to work for a rich American manufacturer (of the few who decide to continue operating in that country). Even wages are really low, prices are also really low.

An even better solution would be for the US and all free nations to leave the UN, leaving it as a pig-sty for 4th world dictatorships. It's not like it's good for anything.

I see, so you take dishonesty to be a virtue. You don't have the decency to admit who you really are, when encroaching on the public domain. What makes you think you have to right to utter your rants in public? If we IP-tracked you and published your real name and address, would you then be morally bound to cease addressing philosophical questions?

You are not a philosopher, so why are you even commenting on the works of a philosopher?  You see where this is going, I hope.

I’m having a hard time thinking of what government agencies should not be on that list of “first to go”. State, Justice, Defense, Treasury, Homeland Security and GSA I suppose. Most federal agencies occupy a position in the executive hierarchy rooted in a cabinet department, e.g. the Army is under the DoD, Secret Service is under Treasury, but EPA is the product of executive ukaze not act of Congress, though with Congress acquiescing by requiring environmental impact statements which gives the EPA its power to eviscerate businesses. Along with the Commission on Civil Rights, EEOC, Office of Government Ethics, FTC, Consumer Product Safety Commission, FCC, FEC, PBS, NPR, VOA, NEH, NEH, NASA, NRC, TVA, Federal Reserve, USPS, SSA, Amtrak, Peace Corps and the Special Inspector General for Afghanistan Reconstruction (seriously), the EPA is one of myriad untethered agencies not under a clear chain of legal authority. Usually, a cabinet department is created by act of Congress and includes a provision for an head. The EPA was created by Nixon fiat declaration, and an attempt to elevate it to actual cabinet status failed under Carter. Nevertheless POTUS has “treated” the administrator of the EPA as “cabinet rank”. The only limit on the administrator of the EPA is that as a “cabinet rank official”, he is subject to Senate approval.
So that means, the EPA can be demoted by executive order, not requiring any act of Congress.
In this case, the real problem is the National Environmental Policy Act, which is the cudgel that grants dictatorial powers to an unsupervised extremist.
 

No, remember that one of the founding members was a dictatorship, the Soviet Union, and one became a dictatorship when the UN illegally expelled China. So I mean the one where Russia dominates with its veto power. The old UN is dead.
Yes and no. We do have an appalling tendency to support dictatorships, but not all of them, for example not Iran, Cuba, Afghanistan, Vietnam, Sudan, North Korea, Venezuela, Red China, Syria, Belarus, Laos etc. We have variable "support" (tolerance) of dictatorships in Russia, Zimbabwe, Uganda, actually lots of Africa. Maybe you could propose a concrete metric of "support" (I mean, do we "support" Canada or Germany?).
Sometimes, the realistic choices are so horrid that it doesn't make a difference. At least presently, there is no decent alternative support-choice for the fake nation "Palestine", nor Algeria, Pakistan, Jordan or even Mexico. Most nations in the UN are appalling dictatorships, which is sufficient reason for civilized nations to leave in favor of a freedom-defending organization.