Trump Just Released His Plan to Revoke Birthright Citizenship. It's Worse Than Imagined.

[Ms. Toad]

60. This is the language describing the group of individuals not granted citizenship

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.

So if the father is a citizen or a lawful permanent resident it doesn't matter. If the father isn't a citizen or lawful permanent resident, then unless the mother has a similar lawful permanent resident status, the child isn't automatically a citizen by virtue of birth. So no distinction between visa holders and undocumented immigrants in the executive order. It is possible the court would split the difference, but if they give at all on this issue, it creates a lot more issues for those people it determines are not "under the jurisdiction" of the United States.

I agree that the question is ridiculous (all people in this country are under the jurisdiction of the US, aside from foreign dignitaries and their spouses and offspring - any other interpretation leads to ridiculous consequences).

But one legitimate use of Executive Orders is to declare how it intends to enforce laws (including the constitution). Recent administrations (from both parties) have increasingly used it to create policy and implement policy outside of Congress. So what happened here is that Trump (via whoever wrote the EO declared how it was going to interpret/enforce the birthright citizenship. It doesn't (on its face) conflict with any existing interpretation of the provision - because it focuses on a phrase not yet interpreted. It is now up to the Supreme Court to agree with him or smack him upside his head.

As to interpretation of the constitution, Congress has no role - that is ultimately the exclusive right of the Supreme Court. The law, unfortunately with an rash idiot like Trump in office, works retroactively. If Congress passes a law that is unconstitutional, the Supreme Court can't review it until someone who is harmed (or potentially harmed) files a suit. If Trump declares, via executive order, that it is going to interpret a provision of the constitution in a certain manner, the Supreme Court can't review it until someone who is harmed (or potentially harmed) files a suit. What is different about this administration is the flood the endzone approach. They are writing so many executive orders with constitutional implications that the measured, step-by-step, intellectual approach (the hallmark of the court system) can't keep up.