Trump, The Border, & The Constitution

I find it amazing that various Talking Heads on the YSM (Yellow Stream Media) prattle on endlessly about what Trump can NOT do and never ever bother to look at any supporting documents. At best, they will refer to some equally ill-informed opinion from another person (often a radically left leaning “academic”). As though a collage teaching position conferred authority. It does not. It, at most, means you have some specific training in a very narrow area and can do an adequate job of teaching about it. That training can be, and often is, incorrect.

So what is the source of authority for Trump and the Border? What is he, in fact, compelled to do? Is it true that the US Army can not be applied domestically?

The Constitution

Let’s start with the top dog law of the land, the U.S. Constitution:

U.S. Constitution – Article 4 Section 4
Article 4 – The States
Section 4 – Republican Government

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

OK, pretty clear to me. Invasion is not limited to “by the military of a foreign power”. It is just any invasion. A few thousand person mob crashing your border stations pretty much defines what an “invasion” is.

Looking at the wording, it says “shall protect”. That means it is not optional. It is a compulsion on the Federal Government to secure the borders. NO choice. It goes on further to state that such force can be used even in cases of domestic violence if either the legislative or, when they are out of session, the executive thinks it is needed. In fact, this has been done before.

Clause 2: Protection from invasion and domestic violence

[…] and [the United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Section Four requires the United States to protect each state from invasion, and, upon the application of the state legislature (or executive, if the legislature cannot be convened), from domestic violence. This provision was invoked by Woodrow Wilson during the 1914 Colorado coal strike.

So even that ol’ Democrat Woodrow Wilson was good with that…

Sure looks to me like a pretty much straight up thing. Trump is compelled by law to defend the border against invasion and, should the folks make it onto US Soil and cause disorder, can use the military to quell that “domestic violence”.

Posse Comitatus

This is the power to enlist the men of a county to form a defense when needed (as a rough paraphrase). There is an interesting quirk in how it has been adjudicated:

The posse comitatus, in common law, is all able-bodied males over the age of 15 within a specific county, when mobilized in whole or in part by the conservator of peace – usually the sheriff – to suppress lawlessness or defend the county. The posse comitatus originated in ninth century England simultaneous with the creation of the office of sheriff. Though generally obsolete throughout the world, it remains theoretically, and sometimes practically, part of the United States legal system.

So first off, realize the Sheriff is the law enforcement of importance here. He / She (our local Sheriff is a Lady ;-) can simply declare those soldiers on the border to be part of his “posse”. Delegate to their highest officer instructions to defend the border and put down disruption.

I’m pretty sure that would cover Texas, Arizona, and maybe New Mexico. Inland California too. The coastal county would likely balk.

But wait! There’s more!

Federal provisions

Title 42 of the United States Code extends the authority to summon the power of the county to United States magistrate judges when necessary to enforce their orders:

… persons so appointed shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged …

Think Trump can find a “magistrate judge” to order the border closed or defended? This also clearly serves as a precedent for using U.S. “land or naval forces” to enforce domestic law. Since Trump is “charged with the obligation” to defend the border by Article 4, section 4, he must be empowered to do so, and this says via similar actions by judges, that the use of the military is approved.

The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878 by President Rutherford B. Hayes. The purpose of the act – in concert with the Insurrection Act of 1807 – is to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States. It was passed as an amendment to an army appropriation bill following the end of Reconstruction and was subsequently updated in 1956 and 1981.

The act only specifically applies to the United States Army and, as amended in 1956, the United States Air Force. While the act does not explicitly mention the United States Navy and the United States Marine Corps, the Department of the Navy has prescribed regulations that are generally construed to give the act force with respect to those services as well. The act does not apply to the Army National Guard or the Air National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state’s governor. The United States Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act either, primarily because although the Coast Guard is an armed service, it also has both a maritime law enforcement mission and a federal regulatory agency mission.

The title of the act comes from the legal concept of posse comitatus, the authority under which a county sheriff, or other law officer, conscripts any able-bodied man to assist him or her in keeping the peace.

Now the first thing to realize here is that this is an ACT and so subservient to The Constitution. That Article 4 power overrides any limitations here. But what are these limitations?

Only specifically to the Army. OK, send in the Marines! The Commander In Chief can wave the regulations. It is also clear that the County Sheriff is still able to conscript folks to the border.

It only applies to domestic law enforcement. Border protection is NOT a “local law enforcement” responsibility. It is a FEDERAL obligation. So this act does not apply anyway. Border control is an international operation / policy area, not a ‘domestic policy’ area.

Then there are exceptions, and they have been used before.

In the mid-20th century, the administration of President Dwight D. Eisenhower used an exception to the Posse Comitatus Act, derived from the Enforcement Acts, to send federal troops into Little Rock, Arkansas, during the 1957 school desegregation crisis. The Arkansas governor had opposed desegregation after the U.S. Supreme Court ruled in 1954 in the Brown v. Board of Education that segregated public schools were unconstitutional. The Enforcement Acts, among other powers, allow the president to call up military forces when state authorities are either unable or unwilling to suppress violence that is in opposition to the constitutional rights of the people.

So any State or County that does NOT deputize or defend and protect their people, who refuse to comply with efforts to defend the border, fall into this bucket where the “Enforcement Acts” apply as they are “unwilling to suppress” the mob. Yes, the “Enforcement Acts” applies to voting and vote suppression, but this is an election cycle, no? Think a mob of thousands crossing the border might hinder border folks from voting?…

In Conclusion

So despite all the nattering by Talking Heads (including a couple of congress critters who apparently don’t read their constitution or even Wikipedia) it looks like there is plenty of “controlling law” saying Trump can, and in fact MUST, defend and protect the border. That he has full authority to do so. That the Military is able to do “whatever it takes” to prevent this invasion. That it is NOT a matter of “domestic law enforcement” at a local level, but is a National law Enforcement / Border Protection issue. And, if desired, there are at least 3 other things that can be done to add more layers of certainty to the legality of it. (Judge order, Sheriff posse, Enforcement Acts). Further, I think Trump could just Federalize the State Guard units and that too would cover it.

I do think Trump will have the Border Patrol guys in the front line, but IMHO as soon as anyone breaks that line, it becomes a “violent disturbance” and a border incursion and “Military rules apply”.

I also expect Trump is holding an Executive Order for a last minute surprise. To be issued just as the invading mob reaches the border. That way “activist left wing judges” can’t stay it prior to the troops being engaged – and then it becomes an “after the fact litigation”.

What disappoints me is how so many “News” programs can’t be bothered to spend the hour I took to write this up, or the 5 minutes it took to look at the authoritative sources, and read what they say. It isn’t hard. Then a sitting congressman just as clueless and getting air time to show off his stupidity? Just amazing… No, I would not expect them to endorse the clear statements of law that the POTUS MUST defend the border as an obligation, but I would expect them to at least state “there is a possible interpretation” even if then they chose to disagree with it. And then they wonder why “Fake News” sticks to them so well. Because EVERY time I do a “dig here!” into one of their assertions, I find partisan spin, not news or analysis.

Subscribe to feed


About E.M.Smith

A technical managerial sort interested in things from Stonehenge to computer science. My present "hot buttons' are the mythology of Climate Change and ancient metrology; but things change...
This entry was posted in Emergency Preparation and Risks, History, Political Current Events and tagged , , , . Bookmark the permalink.

58 Responses to Trump, The Border, & The Constitution

  1. cdquarles says:

    Indeed. Pace RWR, it isn’t so much that our “liberal” “friends” are ignorant; it is that so much that they think they know just isn’t so and they don’t check their own premises.

  2. Larry Ledwick says:

    There is also an option that is often used, you attach a patrol of Army to assist a single boarder patrol officer or law enforcement officer, he has the legal authority to actually make arrests and enforce local laws, they simply assist him in performing his duties and provide protection.

    The US military have been called out on multiple occasions to help control domestic riots and cross border issues with Mexico.

    Click to access disorders.pdf

  3. Larry Ledwick says:

    Another option would be to deputize military police as US Marshals or under the authority of the FBI. We currently have a huge cadre of Military police qualified people due to operations in the middle east, not to mention a large number of civilian law enforcement from all over the country who were attached to the military for police training operations in Iraq and Afghanistan.

  4. Larry Ledwick says:

    Related to this issue is the case law regarding immigration and birth right citizenship.

  5. A C Osborn says:

    What do you mean “What disappoints me is how so many “News” programs can’t be bothered to spend the hour I took to write this up”?
    They do not WANT to know the facts, because they just want to blame him for everything they can think of.
    They had those “talking heads” on the BBC News programme spouting off about him causing these problems, not a single word about the “organisation” behind these massive caravans.
    Just junk Fake News where ever you look.

  6. E.M.Smith says:

    I was pondering an article on that whole “Birthright Ciizenship” thing, but had not run into this point from your link:

    The answer is simple, because nothing trumps sovereignty. Therefore, for anyone who breaks into our country without consent or overstays the terms of his or her entry, it’s as if they are physically not present on our soil. Constitutional rights on our soil, much less the ultimate prize of citizenship, only apply if you come here with consent. That is deeply rooted in social compact theory and settled law. As the court said long ago in United States v. Ju Toy (1905), a person who comes to the country illegally is to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries.

    Already as far back as the 1950s, the Supreme Court had already said, “For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.” Leng May Ma v. Barber, 1958.

    This is why the court said in Turner v. Williams (1904) that an inadmissible alien does not have First Amendment rights because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law.”

    In the notorious Zadvydas v. Davis case (2001), the court reiterated that any alien “paroled in to the United States pending admissibility,” without having “gained [a] foothold,” has “not effected an entry.”

    Since it is already settled law that they have “not effected an entry” even if on US Soil, then the US Military can enforce whatever border control is needed as those folks are “not in the USA” even if they cross the border… so it’s not a “Domestic Law” issue…


  7. Larry Ledwick says:

    So a case could be made that citizenship could be revoked on all anchor babies as they were not born within the Jurisdiction of the US. So would they inherit the citizenship of their parents or the last country they were legally resident in prior to illegally entering the US.

    Visa over stays should have the citzenship of the country that issued their out of date visa not the US.

  8. E.M.Smith says:

    Since a hospital can not confer citizenship, all those birth certificates just attest to where you had a medical procedure.

    As I read that case law, ALL anchor babies ought to have their citizenship assigned to the country of their parents or the last legal residence of the parents, depending on those country laws. They certainly are not US Citizens (per the law). Similarly, ALL illegal aliens and their descendants are non-citizens.

    That will never happen, but it is what the law says.

    I wonder, if we were to actually do an audit of our population, how many tens of millions would be deported? I’m guessing, at this point, about 30 Million minimum. For places like California, closer to 20% (or about 6 Million here, alone). That would sure change the allotment of House Members among the States ;-)

    Since the USA can track every single financial operation by US Citizens WORLD WIDE (by law…) I’m sure they could easily do an audit of all of us and figure out who really is a Citizen and who isn’t. It’s a much smaller operation with much simpler documentation. You can put a “cut off” at the Reagan Amnesty (or whichever one is the most recent) and any birth certificate before that gets deemed valid. Then it’s just a genealogy tree and folks need to have at least one “upstream” who is properly nationalized or born here. As naturalization records ought to be at the National level, that one ought to be easy. Birth Certs are more diffuse… yet there are aggregators who have collected “public records” on line already. I’d bet you could do it in one SQL process…

    Then once you know who is legal, it’s easy to just find anyone doing any transaction that isn’t on that list, and if they have no current visa, out they go. NSA could likely have a 90%+ accurate list inside a week. (I’d say a day, but they are a government agency…)

    50 States. Call it 2 major airports and 8 major bus stations / train stations each. 10 departure points / State average so call it 500 “loading stations”. Load 2 x / day is 1000 loadings / day. 60 persons / bus. 400 / plane. ??/train. Call it about 1200 / State / Loading ( 2x 400 planes, 60 x 8 other, 800+480= 1280 but figure some will be empties) so about 1200 x 1000 = 1,200,000 / day. That makes it about a month to done. Figure 2 months just ’cause it would not run that perfectly and weekends might not work so well. Hey! We could be done by 2020 ;-)

    Strictly a hypothetical. Just to demonstrate that the bleating that “It just isn’t possible” to deport that many people is just crazy talk. It certainly can be done, and fairly fast.

  9. Larry Ledwick says:

    This is not a new problem and has been a sore point politically for many years.

    In the Eisenhower administration (1955) they deported 1.3 million Mexican Nationals in an effort to clamp down on illegal immigration. It was called “Operation Wetback” which today is considered very racist at that time it did not carry such a stigma. I understand to try to stop circular boarder jumping when they deported people to Mexico, many of them were deported by airplane and ship and transported them well south of the boarder before off loading the deportees.

  10. philjourdan says:

    The talking heads could not do what you did because they lack the skills and intelligence.

  11. Serioso says:

    I love it! An “army” of mostly unarmed women and children, hundreds of miles away, constitutes “an invasion!” And the fourteenth a,amendment doesn’t mean what dozens of judges and scholars says it means, all because you can find a few oddballs who have found ways to distort the plain meaning of the English language. I take it that winning an argument matters far more to you than telling the truth. Be ashamed! Be very ashamed!!

    So let’s quote what the 14th says, in part:

    Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Pretty clear, no? What’s your problem? Too much Fox New? Too much Breitbart?

    Mr. Smith, you do have a talent for avoiding obvious truths!!

  12. philjourdan says:

    Tsk, tsk, tsk. Serioso seems to be proving he cannot learn. He cannot even try to make a point without ad hominems. And he had to quote “in part” because the other part proves him wrong.

    Did he even read the court cases cited? That does not require Google since the citations are here. Must not have since he ran to the left’s talking points without trying to make a point or offer a substantive rebuttal.

  13. jim2 says:

    The 14th Amendment has to be interpreted in light of the arguments before it was passed. You can’t just look at the words in today’s context.

  14. jim2 says:

    Here is part of the arguments of the time. It was right after the Civil War.

  15. E.M.Smith says:

    Ya know, Serioso, the more you insult and posture the stupider you look. It is clear you have some innate personality defect that prevents civil discourse. You ALWAYS return to the insult and slander. ALWAYS. It has been several years now. Countless admonitions and instructions, even simple examples. You just can’t hack it. Gotta go for the emotional hit of the “insult to the person”.

    OK, let’s go around this block once again.

    I love it! An “army” of mostly unarmed women and children,

    Um, “facts not in evidence”. Yes, they put a fraction of women and children in the front, but if you search out the videos that show the REST of the parade, it is mostly military age men. As for “unarmed”: As I’ve already pointed out elsewhere, nobody is ever “unarmed”. Only the quality of the arms in in question. Feet, in particular, are quite lethal. Roundhouse kick to the head, then a good stomping kills in about 20 seconds IF you are slow.

    But even despite that: By what method have you divined that there are no knives in that group? I grew up with my “best buddies” being Mexican kids. Pretty much every one of them carried a knife and knew how to use it. VERY fast hands. Against one of them with a knife, even with my Karate training, it would be a challenge to stay alive. Against 2 I have no hope. (We did practice “knife defense” and “knife take-away” but also learned “When 2 tigers fight, one of them dies and the other is seriously wounded”)…

    Finally, on one hand you say their country is loaded with guns and unsafe, then you say, miraculously, none of them are bringing their guns. Yeah, right. The stupid, it burns… BTW, saw video of them “camped” in Mexico. One guy in the background clearly had a semi-auto something in his belt…

    hundreds of miles away,

    Or a few hours away given they are mostly riding on trucks and in buses.

    constitutes “an invasion!”

    Yes, it does. Just like “invasive plants” and “invasive cancer cells”. An invasion is a bunch of “something” going where it does not belong. Now had I wanted to say “Military Invasion” I’d have put the word “Military” in it. See, that’s how the language works, only the words ACTUALLY THERE are the ones that matter. You desire to respond to the imagined word “military” and see phantasms.

    And the fourteenth a,amendment doesn’t mean what dozens of judges and scholars says it means,

    “Facts not in evidence.” No citations. No case law. No exemplar rulings. See above where the citations show otherwise.

    all because you can find a few oddballs who have found ways to distort the plain meaning of the English language.

    An ad hominem against the Justices who ruled in court on actual cases, then an assertion from you that the “plain meaning of the English” was distorted. You the person who can see imagined words where there are none.. By the way, it isn’t the “plain meaning” that matters, it is the meaning in Law. Very different things.

    I take it that winning an argument matters far more to you than telling the truth. Be ashamed! Be very ashamed!!

    First off, let’s deal with your directions for my emotional state: NO-OP! NO-OP! As I’ve pointed out many times, each person is exclusively responsible for their own internal emotional state. Your rampant emoting just makes me giggle. Buddhism helps to stay centered and at peace. That’s where I choose to be. That’s why the monks have those little smiles. Inside they giggle at life, and those around them. I’m smiling at you now ;-)

    Now, as per “winning an argument”: MU! The statement is of incorrect form! No one can ever “win” an argument. As soon as you argue you have lost. One can ask simple questions and search for their answers. That’s what I’ve done. I had no idea what the answers would be when I set out. I have no “goal” I’m trying to reach. I just wonder “What is?”. In short, all I ever do is “tell the truth”, to the extent any mortal can possess it to share. I can be wrong some times, but I always strive for a “tidy mind” and maximal correctness. IF you have decent evidence that those cited cases have been overturned by higher authority, feel free to present it. Politely and without insults, please.

    I won’t bother re-quoting the 14th. The key bit is the “subject to jurisdiction thereof”. When I went into this “data dive” I, too, thought that meant “You are here, so subject to our laws”. What I learned was that the legal definition was much more complicated and that people who are physically on our soil illegally are not “here” in a legal sense. I was quite surprised by that, but I’m willing to change my beliefs when presented with the actual evidence and prior case law.

    Then you again resort to insults “to the person”, slanders, ad hominems, etc. etc. Poor Serioso, it is such a small thing to learn, but politeness is beyond your ken…

    Pretty clear, no? What’s your problem? Too much Fox New? Too much Breitbart?

    Mr. Smith, you do have a talent for avoiding obvious truths!!

    Just to ease your fevered over imaginative mind:

    1) No, your position is not clear, as you have cited no case law and only the law matters here.
    2) I have no problem.
    3) I’ve not had access to Fox News since about March 2017. That’s what, year and a half?
    4) I only read Breitbart when someone here posts a quote or a link to an interesting article. I’d like to read more, but I have a spouse, 2 dogs, and 4 cars plus a house that all demand my attention. So I get maybe one article every 2 months or so. I doubt that is “too much”. FWIW, I watch about an hour of CNN, ABC, Reuters, CBS, NBC, Sky, and Franc24 most days. Down from 2 or 3 hours in the past as they have become incredibly repetitive and echo each other. So, in fact, my major exposure is to Hard Left Bias outlets.
    5) Just for completion: In the last few weeks I’ve started to leave InfoWars running on the TV (usually muted) mostly to raise their ratings after the cyber-assassination being carried out on them. I’ll listen to about 30 minutes of it some time, but it’s hard as they shout a lot and that tends to disturb my inner peace. Thus the mute.

    Then you do that most peculiar thing dominating folks on The Left: You accuse ME of your own failings and behaviours. I know Marx, Lennin, Alynsky and others (including Goebbels IIRC) all have instructed you to do that: BUT you ought to realize it no longer works once the “target” knows how your process works and what is in your playbook.

    You will need to “up your game” and lose some of the shrill insults if you wish to do anything other than give me a quiet smile… :-)

  16. Terry Jackson says:

    The argument goes on:
    Why Trump cannot eliminate birthright citizenship for children of undocumented immigrants by executive order.

    One thing that makes the Deplorables so Deploarable is their keen perception of the disconnects between the opinions of the elite and reality. Of course the illegal immigrant children are entitled to birthright citizenship and chain migration, it is how we punish illegal immigration. Lots of elegant legal opinions, but none deal with the discoonect.

  17. R Shearer says:

    I would send 1000 puppies and 10,000 full grown German shepherds and Dobermans to the border and place the puppies where the cameras can see them.

  18. Serioso says:

    Thank you Terry Jackson! So nice to see an informed and intelligent comment. How rare in this space!!!

    I am still awaiting any evidence that I insulted anyone here. Can anyone quote back to me my insulting words or phrases?

  19. Terry Jackson says:

    Speculative question:
    All officers of the US take an oath to uphold the Constitution. Where in said Constitution does it confer exclusive rights to determine the meaning of the Constitution to the Courts, and especially to the lower courts not specified in the Constitution but rather established by Congress? On the face of it, The Supreme Court, the Congress, and the President all have a valid claim to Constitutional interpretation. University professors, lower courts, and pundits, not so much.

    Also, the Constitution confers the Veto to the President, and the Override to the Congress. It is silent on the Courts.

    The Rebuttable Presupmtion: Constitutional validity is a political matter between the political branches. The Court may intervene, but only at the Constitutional, not Congressional, level, and only with the forbearance of the political branches.

  20. E.M.Smith says:

    Already quoted above in my reply. Set out in italics. That you can’t even see your insults is illuminating…

    So you don’t have to scroll all the way back a couple of messages:

    all because you can find a few oddballs

    Insult to the cited legal rulings and their judges

    I take it that winning an argument matters far more to you than telling the truth.

    Insult ‘to the person’ (in this case, me.) Statement that, in effect, I would lie for winning.

    Be ashamed! Be very ashamed!!

    Direct insult implying violation of social norms requiring “shame”.

    What’s your problem?

    Insult to the person.
    Implies inadequacy or incompetence or other moral or capacity defect.

    Too much Fox New? Too much Breitbart?

    Assertion of weak mind influenced by others. Insult to the others implied as biased or untrustworthy (something not in evidence).

    Mr. Smith, you do have a talent for avoiding obvious truths!!

    Insult to the person, implying, no stating outright, the desire to avoid truth. Assertion of moral failing.

    It is really pretty simple to spot. The pattern is:

    Subject possessive Bad Attribute. You use it a lot.

    Compare instead:

    Source Observation Passive (it exists).

    “This provision was invoked by Woodrow Wilson during the 1914 Colorado coal strike.”

  21. E.M.Smith says:

    @Terry Jackson:

    I think it is here:

    Article III
    Section 1.

    The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

    So the Congress and the President can interpret the constitution to do their jobs, but when litigated it goes to the Judicial to make a determination.

  22. Serioso says:

    @philjourdan says

    “Tsk, tsk, tsk. Serioso seems to be proving he cannot learn. He cannot even try to make a point without ad hominems. And he had to quote “in part” because the other part proves him wrong.”

    Well, phil, here’s the other three paragraphs. Where does anything in here prove me wrong?

    Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

    Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    Phil, your commentary is either a joke or a lie. But I guess you think no one will notice the difference.

    Is this an ad hominen attack? No, it’s simply the truth, something I find rare on this site. Likewise, Mr. Smith’s complaint that I refer to some of his sources as “oddballs” is hardly an ad hominen remark: It is the considered opinion of the vast majority of legal scholars. Why avoid the obvious? To pretend your sources are mainstream is absurd. Drop the pretense and admit these opinions are the province of a very small minority. TRY HONESTY!

  23. gallopingcamel says:

    I love Serioso. He reminds me of the ACLU which is on the wrong side of every issue.

    The simple fact is that when Trump says he will close the border it will happen no matter how much clucking people like Serioso may emit.

    Immense forces are arrayed against Trump…..the Media, Academia, the Fed, the Dems, the RINOs and much more yet he continues to triumph because he keeps reminding us why we elected him in the first place.

    Look for a Red Wave next Tuesday.

  24. Larry Ledwick says:

    Lindsey Graham will propose legislation to end birthright citizenship

  25. gallopingcamel says:

    Why is left leaning politics “Blue” in this country? Everywhere else Red is the color for the Left.

  26. E.M.Smith says:


    I honestly hope you are a bot, as such statements as this, from a real person, would be a sad statement about their cognition:

    “Mr. Smith’s complaint that I refer to some of his sources as “oddballs” is hardly an ad hominen remark: It is the considered opinion of the vast majority of legal scholars.”

    Can’t see where calling someone “oddballs” is an insult to the person? Amazing.

    And “vast majority of scholars”? So you’ve talked to 75%+ of them, eh? Hyperbolic exaggeration is silly. (51% would be a simple majority, not ‘vast’ – and so far we have zero evidence for ANY “legal scholars” on your side.)

    You are a waste of time. (Just a fact, so clearly, by your terms, not an insult..)

  27. E.M.Smith says:


    Some TV show years back colored Republicans red as they didn’t want to associate Democrats with Commie Reds – then they all thought it was “cute” so the other networks joined in.

    They forgot that red is a “power color” …. and blue passive…

  28. gallopingcamel says:

    The Media will be dumbfounded a week from today. They will try to explain what happened so I have decided to help them out by firing up my crystal ball.

    The GOP success will not rest on their voter turnout because the DEMs will probably match them in that respect. The GOP will win because unaffiliated voters like me appreciate what Donald J. Trump has achieved in less than two years.

  29. p.g.sharrow says:

    I think Serioso should be required to read and re-read Section 2 until logic dawns. Pay close attention to punctuation! “being twenty-one years of age, and citizens of the United States,”
    Illegals are NOT citizens, their offspring are NOT citizens at birth. They might become citizens at a later date. But they are not born citizens. They are born citizens of their parent’s country….pg

  30. Larry Ledwick says:

    One of the most basic tenets of our legal system is that the clearly stated intent of legislation at the time it was written and the common understanding of the words used in the legislation at the time it was written demand special consideration and deference.

    Likewise judicial precedence also carries weight above and beyond the literal meaning of the words in the original legislation. Deference to meaning of words in old laws are determined by examining common usage in books and news papers, legal text books and references contemporary to the the time the law was written as they obviously would have been the meaning intended by the author.

    In legal matters there are two different cases, the common meaning of words in the vernacular of the time and a small set of (to use the computerize jargon) “reserve words” which carry special closely defined meaning in law. Terms such as custody, manslaughter, tort, injury, judgement etc. Have very tightly constrained meanings in legal usage, sometimes at odds with common usage of the same term.

    This is at the heart of several legal debates between the left and the right. The left keeps insisting on interpreting old laws using modern standards of language meaning. For example that the phrase “well regulated” should be interpreted in the modern vernacular as “well controlled by legislation and the power of the state” when at the time the second amendment was written, the common usage clearly demonstrated a meaning which was entirely different.

    The most direct example is a person of 1780’s would perhaps talk about a “well regulated clock”, meaning it kept good time not fast not slow but did the job it was designed to do well.

    He absolutely did not mean that a well regulated clock was under the control of the government or authorized by the government.

    This original usage and understanding was pivotal in determining that the second amendment conferred an individual right to go armed, and had nothing at all to do with preparatory clause that stated the reason it was important – which was:
    “A well regulated Militia, being necessary to the security of a free State”
    In plain modern language this meant:
    [A free state requires an effective and well trained militia – to achieve that end, it is imperative that the general public be accustomed to arms and skilled in their use and have them available if called to militia service]

    Note that even today in the US code of Federal Regulations every male citizen over the age of 17 and under 45 is a member of the militia. (see 10 U.S.C. §311. Militia: composition and classes)

    Likewise, to get back to the direct topic of this discussion the phrase

    “Under the Jurisdiction of”
    Has a special carefully defined meaning in the context of immigration law.

    It does not mean “subject to the laws of the US” as erroneously stated in the comment link above by Terry Jackson, it rather refers to which sovereign the person owes allegiance too

    (ie what country are they a citizen of) and in the case of an illegal immigrant what jurisdiction they would be returned to if deported.

    As noted by E.M. legally even though an illegal immigrant is standing on the territory of the US, under immigration law he is still outside the country, because he never was properly allowed to enter, his physical entry was moot and entirely irrelevant as far as immigration status is concerned, he/she Never entered the country for immigration purposes and was still subject to the jurisdiction of his legal citizenship not his location {for immigration purposes}.

  31. E.M.Smith says:

    I’d guess there is a lot of similarity in how programmers must think precisely in jargon and now lawyers must think precisely in jargon. We’re used to adopting the “local definition” and dealing with special meaning of “reserved words”.

    I can just feel the precision and care in words from Larry L. I bet you write good code too.

  32. E.M.Smith says:

    Just a reminder, we already had one “caravan” arrive at the border:

    Back in April…

  33. E.M.Smith says:

    A Great speech at a Great rally in Fort Meyers Florida. At about 43 to 44 minutes, Trump addresses “Birthright Citizenship”:

    I find it funny when he asks “who voted” and almost everyone had already voted. My spouse and I have also already voted. All the “last 2 weeks” October Surprise stuff is just a fun show for us. Deed is done, nothing will change it.

  34. Graeme No.3 says:

    Here in Australia the evening news** was enlightened? by some pr*t reporting from the USA about President Trump saying he was sending 10,000 more troops to the border, but it was all nonsense because troops couldn’t be used against civilians.
    ** Not the ABC because I gave up watching it years ago, even the weather forecast isn’t worth watching.

  35. Graeme No.3 says:

    On a lighter? side this may have escaped you attention.
    The Deplorable Vlad the Impaler (on JoanneNova)
    Too good to keep on this side of the Big Pond:

  36. Larry Ledwick says:


    Thanks for the kind words Chief, coming from you a high complement!

  37. Richard Ilfeld says:

    As a practical matter, it is clear to us non-lawyers that it makes some sense for anyone born here of legal residents to be a citizen. If the country of their parents also is willing to grant them citizenship, its ok to be dual. We see interesting fictions played out when constructing teams for international sports competition. Hard to find Japanese hockey players for example. No big deal.

    As a practical matter, it is also common sense to be uncomfortable with someone trying to exploit the law. A Chinese tourist, coming to bear an anchor baby, is clearly taking advantage….a normal person might well think that tourism, while certainly legal, is not “residency”. Yet we’ve generally looked the other way. These ‘tourists’ don’t seem to represent a social services threat, and many of us can understand why a Chinese family might want a means of escape as China seeming returns to a more Stalinist philosophy. Frankly, many of us might be comfortable with capitalists buying their way in, a feature of many systems such as Canada’s.

    Actually, also common sense, the argument would be mostly moot without the curse of chain migration. If the US born child, upon attaining majority, wishes to come here of his or her own volition, I’m OK with that. If you have wife and kids? I’m OK with that. Other family members? Nope. Your parents were lawbreakers. They can apply, like any other foreign national. The outstanding immigration case is a strike against them. In a merit system, they might have virtues that would overwhelm this transgression. Your auntie, or uncle, or granny? Nope.

    If you parents were permitted to be here illegally when you popped out of the womb, that’s on us. We were complicit in permitting this. The “constitution” benefit, which I’m not fully comfortable with, I’ll stipulate. But this benefit, if accepted, is yours alone. And you can’t exercise choice until majority; when you can legally reside here on your own. Probably age eighteen in most jurisdictions. Stick with you parents until then. And yes we can deport them, and you. You can exercise your rights when able; but your parents don’t derive rights from you.

    Immigration is integral to the history of this country. For 300 years it was immigration without government supplied social services. Open borders and a welfare state cannot co-exist. The fundamental logic of a welfare state (that is not surreptitious socialism) is that the bell curve gives us a few individuals that need full time assistance, and a large number that need a helping hand from time to time. The essence of a “merit based” system is that the immigrant be self sufficient.

    True asylum, in the traditional sense, fits this model; the individual in question has achieved sufficiently in his home country to annoy the authorities and been driven out or punished.

    Finally, common sense equates the progressive ‘open borders’ call as naked politics. A demographic tsunami to drive conservatives from power with millions of grateful amnestees.
    Offer Amnesty with no voting rights ever for any amnestied person not born here, and be rejected out of hand.

    Folks often resort to legalisms when their arguments defy common sense. If you don’t allow illegal residence in the first place, the words of the 14th aren’t much of an issue. The legal question may be, can you gain a right by willfully breaking a law. If we enforce our laws, the question is moot.

  38. philjourdan says:

    Tsk, Tsk, Tsk, Serioso cannot even post a response without more ad hominems. And it is proving it cannot understand the written word. After being quoted, it still cannot see its juvenile ad hominems and infantile insults. Nor apparently can it understand what it writes. EM, I think what you have here is a classic example of an NPC. It cannot respond to what is written, it can only regurgitate what the program has fed into it. We need to stop trying to engage it in a rational discourse and merely dissect how its creator has programmed it. It does not appear to be capable of responding to outside stimuli. Just run its program.

    Fascinating as Spock would say. I marvel at the programmer who created it. I would call this one a version 1.b. Far from sophisticated, but better than a version 1.0.

    We just need to find the triggers to get the different responses out of it.

  39. Serioso says:

    Okay, philjourdan, let’s do it again. You said, and I quote:

    “Tsk, tsk, tsk. Serioso seems to be proving he cannot learn. He cannot even try to make a point without ad hominems. And he had to quote “in part” because the other part proves him wrong.”

    So I said: Well, phil, here’s the other three paragraphs. Where does anything in here prove me wrong?
    AND YOUR RESPONSE??? Simple enough: Ignore the fact that you will not or cannot support your own statement with evidence. Instead, you change the topic.

    Clever, I suppose, to those that don’t read the entire text. philjourdan, I accuse you of intellectual dishonesty. Is that an ad hominem remark? I don’t think so. You said “the other part proves [me] wrong.” And then you fail to say how. Is that honest? I don’t think so! Shame, I think, shame!

  40. E.M.Smith says:


    I think you hit a trigger ;-)

    BTW, as noted elsewhere: “I do it for the others…”

  41. Terry Jackson says:

    Here is another argument

    The Executive can order the agencies to honor the original interpretation of the amendment.

  42. p.g.sharrow says:

    It appears to me that “serioso” has a reading comprehension problem. It needs an programing up grade. I’m glad to see that phil has noticed the defect…pg.

  43. E.M.Smith says:

    @Terry Jackson:


    Trump writes and executive order saying “Not for illegals”. It, of course, cites the author (noted above here: ) saying the 14th does not apply to “persons born in the United States who are Foreigners”.

    This will be immediately challenged by some Left Judge Somewhere. This will rapidly escalate to the Supreme Court, who will finally rule on it. They will rule “Yup, that’s what the original intent was” and then it’s done.

  44. E.M.Smith says:

    @P.G. & Phil:

    While I’m enjoying the show, I do have to say that what I think Serioso meant is likely correct. That the rest of the 14th didn’t really make him wrong. Well, since he was already wrong from the first part, I’m not sure exactly now to parse that… Sort of like “I’m wrong here and that part doesn’t make me wronger” ;-) Well, it is true, sort of…

    But I saw no reason to help his (her? its?) case since that would require reading around all the insults and slime and I’d get my mind all dirty and wrinkled doing it… 8-0

    The actual central point is only “subject to the jurisdiction thereof” where we have the authors saying it doesn’t include “foreigners” in our country and it’s also already been adjudicated (and found doesn’t apply to “foreigners in our country”). The only thing missing is SCOTUS saying “Well, hell yeah! Can’t you read?”.

    After that, the rest, really, is small change and “doesn’t make me wronger” stuff.

    Now while most of that is about apportioning representatives and such, it does point out that indulging in “rebellion or insurrection” gets folks disqualified. I’d assert crashing the border and ignoring our laws is “rebellion and insurrection” so likely somewhere or other it “abridges” a persons claims. But that all depends on someone making that finding (that hasn’t been done yet that I know of).

    Then the other bit that sort of matters is the 5th.

    “Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    Basically saying Congress can make specific laws how they like it to make it clear just whom is a “foreigner” in our land and under what terms it ends (i.e. “green card”? Or only via “naturalization”? Or what?). Congress has done some of that. We do have a naturalization process that can make a parent a citizen (then the kid gets derivative citizenship IF THE NATION ALLOWS IT). To the extent they don’t, then the Executive gets to interpret it and “run with that” until the Congress or the SCOTUS says otherwise. (That’s how the system works…)

    FWIW – I’m in the bucket of someone who has “issues” with citizenship. Not my US, but my UK. Mom was British when I was born (registered alien here). Up until sometime like the ’80s? That meant I could NOT claim UK citizenship as UK law said it only traveled through the Dad. Then they changed the law. In theory, now, I can apply for my UK Citizenship. All changed by various law making. The US can do similar lawmaking. Congress can choose to “clarify” what “subject to the jurisdiction thereof” means and just move on. Similarly, Trump can choose to “clarify” it via Executive Order. (and the potential litigation to follow). Basically I’ve spent a while looking at citizenship law…

    Sidebar: If I had some clue that I would not get a ‘soak the rich’ tax on an expat Brit, I’d march down and get the British Citizenship just because I always felt 1/2 British. I doubt I’d ever do anything with it, but it would be pleasing.

  45. Rhoda Klapp says:

    Chiefio, we’d be happy to have you. There’s no expat tax, UK tax goes with UK residence only, not like the iniquitous US wherever-you-are system.

  46. gallopingcamel says:

    “All the “last 2 weeks” October Surprise stuff is just a fun show for us. Deed is done, nothing will change it.”

    Here in North Carolina we have early voting so my wife and I voted more than two weeks ago. None of the “surprises” have caused us voter’s remorse. The Media have been telling us that the voters can’t wait to correct their error two years ago (by voting for Trump).

    I wonder what lame excuse the Media and the Dems will create to explain why voters still reject them?

  47. jim2 says:

    The pertinent context of the 14th Amendment is the Civil War. It was aimed squarely at the slaves. As Ann Coulter points out, paraphrasing, why on Earth would a society fresh out of a Civil War be concerned about babies of foreigners born here? It is a historical non sequitur.

  48. gallopingcamel says:

    @Rhoda Klapp,
    The UK and most countries only impose income tax on residents. Even though I receive pensions sourced in the UK these payments are not subject to UK income tax because I now live in the USA.

    Sadly, there are a still a few countries that try to tax their citizens on their “Worldwide” income regardless of where they reside. To its discredit, the USA is one of these so I am expected to pay US income tax on my income from UK sources even if I move elsewhere.

  49. Rhoda Klapp says:

    Camel, I worked in the US for a couple of years, still trying to sort out a UK pension taxed twice. I think the UK will give me the tax back, eventually.

  50. PhilJourdan says:

    I saw its attempt to prove it was not ‘wronger”. And of course it does not seem to be able to respond to anything outside of its narrow program. I just saw the uncanny resemblance to an NPC and figured that is what it must be. As PG noted, it needs work in order to vary its responses a bit (even NPCs can vary a response slightly). But since it is not programmed to respond outside of the program, it is boring to engage it.

  51. Larry Ledwick says:

    Some interesting stats:
    From twitter:

    Jack Ralph
    11 minutes ago
    Department of Homeland Security officials report that nearly 300 members of the mobs en route to the U.S. at this time are either convicted criminals or known gang members.

    Sean Davis‏
    Verified account
    3 minutes ago
    “Latin America accounts for 8% of the world’s population and a third of its homicides, which makes it one of the world’s most murderous regions.”

  52. Larry Ledwick says:

    The Mexican mob is probably using this same technique.

    Maybe cut off processing of the types of cards used by these globalist funded migrant invasions?

  53. Larry Ledwick says:

    Hmmm so this is how they are making money off the migrants, essentially turning them into indentured servants (slaves)

  54. Larry Ledwick says:

    I bet the promoters of these things have a piece of the action all along the route too!

    You want to use your prepaid card to buy boots – cool I just happen to have a truck full of boots over here, and I can process those prepaid cards.

    Plus probably getting a skim from the coyotes and the drug dealers who are using the desperate immigrants as drug mules so they can pay off their expenses or afford to send money home to the family etc.

Comments are closed.