Here’s a look at the new gambling specialty court. [Las Vegas Sun]
2000 Olympic bronze medalist and lawyer Tasha Schwikert-Warren, and her sister, filed suit against USA Gymnastics, the US Olympic Committee, and Larry Nassar. [KTNV]
President Trump is talking about trying to void the 14th amendment and birthright citizenship through executive order. [KNPR]
A local consignment shop suddenly closed this weekend leaving its customers in limbo. [LasVegasNow]
OK let's see, if you had property with them it has magically vanished and you are SOL. But if you owe them money, they will find you very soon. Sounds legit!
I noticed he said "they're saying" he can do it with an executive order. Who is they? Hannity? Voldemort? I'm guessing no WH lawyer wants to be associated with that position.
Well, the question is what the Constitution says, not whether Trump can overturn it. SCOTUS case law is mixed on this question; either side has case law to cite to. There is case law explicitly (and correctly) saying that the clause was meant to address the Scott ruling that a black person could not be a citizen and that the clause does not apply to make citizens of those who owe allegiance to a foreign power upon their birth in the US.
10:25, you must not be a strict constructionist. The 14th doesn't say it applies to those who do not owe allegiance to a foreign power, it says those who are born or naturalized in the United States and subject to the jurisdiction thereof, are citizens. Are you saying that people in the country, whether here legally or illegally, are not subject to the jurisdiction of the US? If not, then how do we have the power to deport people?
Here is the problem with Spalding's analysis. “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” The focus is on "subject to the jurisdiction thereof."
Elk was considered subject to a sovereign tribe and born on sovereign tribal lands. Wong Ark Kim (and the children at issue that Trump is going after) are not born on sovereign lands; they are "born. . . in the United States and subject to the jurisdiction thereof." Even if one were to read "subject to the jurisdiction" as meaning "owing full allegiance" (which requires Jabberwockian expansion of the plain meaning), we do not require (and cannot receive) an oath of allegiance from a newborn. Therefore we confer the rights and require the concomitant full allegiance.
Spalding's analysis fails because it does not exclude what he argues that it excludes. The language says what it says and means what it means: if one is born or naturalized and subject to the jurisdiction of (and by Spalding's own words affirms "full political allegiance") they are a citizen by constitutional right. No Trump cannot strip people of a right guaranteed by the 14th Amendment. I am confident even this current S.Ct. would not trifle with that holding.
Which of course was earlier than Wong Kim Ark and which also had a fact pattern of a person being deemed a citizen of the tribal lands on which he was born.
Between Elk v. Wilkins, Wong Kim Ark, and In re Look Tin Sing, it's pretty clear that the only issue is whether the baby at the time of birth is subject to US law (you know, assuming that baby decides to go on a crime spree). Yes, the parents in Wong Kim Ark were "legal," but I don't see that as being dispositive. US law applies regardless.
Thats not so. Elk v. Wilkins held that "jurisdiction" doesn't just mean subject to criminal laws or something but subject to complete jurisdiction. Therefore, the Indian at issue was not a citizen because he owed allegiance to his tribe, a quasi sovereign entity. Wong Kim Ark didn't overturn that case. There is some dicta in that opinion that supports the more expansive view of the clause, but it only decided that children of permanent resident aliens born in the US fall within the clause. There is a tremendous, manifest distinction between permanent resident aliens such as Wong Kim Ark and the children of illegally present aliens. SCOTUS may decide the factual distinction does not matter under the 14th Amendment, but it has never addressed the question, and the case law still supports the restrictive interpretation.
Guest
Anonymous
October 30, 2018 6:31 pm
As far as the article about wanting to void the 14th amendment it is interesting that when someone does not like an amendment, and argues for it to be abolished, that they equate it to a current situation. In this case that is the argument that the provision that one is automatically a citizen if born on U.S. soil, that such needs to be overturned because we have a huge immigration problem that the founding fathers could never have envisioned.
However, if the very same person, who wants this 14th amendment provision abolished, wants to protect a different amendment that has come under attack(most commonly the Second Amendment and the right to bear arms) they will argue original intent, that we should be strict constructionists, judicial and legislative activism must be avoided ,and that the constitution should never be amended based on dramatic societal changes over the decades.
At least lets be consistent. It is intellectually dishonest to holler original intent and that we should be strict contructionists,and avoid judicial activism at all costs when someone wants to change or abolish an amendment we support, but then turn around and ignore all those arguments and concepts when it is an amendment we don't care for and would like to see eliminated.
Guest
Anonymous
October 30, 2018 7:07 pm
This comment has been removed by a blog administrator.
12:07's beef against former counsel was denied. 12:07 didn't like that, and thinks it's because bar counsel is too lenient. Couldn't possibly be because the complaint was loony toons.
I don't know if it makes you feel any better, but bar counsel screwed me over as well, so you are in good company. They ignored north of six blatant ethics violations.
One case does not make "too lenient." Let me know when years of cases fall on the lenient side. With that said, I know some of the Asst. Bar Counsel. They knew that things had gotten wacky between Hardesty and Hunterton but just shrugged it off with the Nuremburg Defense.
Guest
Anonymous
October 30, 2018 11:40 pm
Off topic – My client wants to hire an “asshole” who will do things I’m unwilling to do – such as send aggressive emails, accuse opposing counsel of various nonsense ….any recommendations?
COLLEEN'S IS CLOSING? MOTHER OF MERCY WHAT WILL LAS VEGANS DO?
OK let's see, if you had property with them it has magically vanished and you are SOL. But if you owe them money, they will find you very soon. Sounds legit!
Well now that Colleen's is in bankruptcy, that is generally how it works.
Oh please let Drumpf try to overturn the US Constitution via executive order only to get smacked by the conservative SCOTUS. Is this too much to ask?
Small consolation. In the YEARS that it would take for that to make it to the SCOTUS, Trump would be long gone.
I noticed he said "they're saying" he can do it with an executive order. Who is they? Hannity? Voldemort? I'm guessing no WH lawyer wants to be associated with that position.
Well, the question is what the Constitution says, not whether Trump can overturn it. SCOTUS case law is mixed on this question; either side has case law to cite to. There is case law explicitly (and correctly) saying that the clause was meant to address the Scott ruling that a black person could not be a citizen and that the clause does not apply to make citizens of those who owe allegiance to a foreign power upon their birth in the US.
Could you provide a cite to this case law that overturns Wong Kim Ark you totally aren't just making up?
Newborns who "who allegiance to a foreign power upon their birth." Dear God you are frightening.
10:25, you must not be a strict constructionist. The 14th doesn't say it applies to those who do not owe allegiance to a foreign power, it says those who are born or naturalized in the United States and subject to the jurisdiction thereof, are citizens. Are you saying that people in the country, whether here legally or illegally, are not subject to the jurisdiction of the US? If not, then how do we have the power to deport people?
https://www.wsj.com/articles/the-case-against-birthright-citizenship-1541025425?emailToken=865b813848439872045b0767d9f016712jM/B9OVmPL3fIJ5NgknT7OVf7nl1cxT4SUEWEgZUsfWV8XzdiUNDFl+TVnMdlifOZyNZpckxhS2Kbw4mhHpnM/u2FRoe0o2ll6Px/4EUvg%3D&reflink=article_copyURL_share
Here is the problem with Spalding's analysis. “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” The focus is on "subject to the jurisdiction thereof."
Elk was considered subject to a sovereign tribe and born on sovereign tribal lands. Wong Ark Kim (and the children at issue that Trump is going after) are not born on sovereign lands; they are "born. . . in the United States and subject to the jurisdiction thereof." Even if one were to read "subject to the jurisdiction" as meaning "owing full allegiance" (which requires Jabberwockian expansion of the plain meaning), we do not require (and cannot receive) an oath of allegiance from a newborn. Therefore we confer the rights and require the concomitant full allegiance.
Spalding's analysis fails because it does not exclude what he argues that it excludes. The language says what it says and means what it means: if one is born or naturalized and subject to the jurisdiction of (and by Spalding's own words affirms "full political allegiance") they are a citizen by constitutional right. No Trump cannot strip people of a right guaranteed by the 14th Amendment. I am confident even this current S.Ct. would not trifle with that holding.
Elk v. Wilkins
Which of course was earlier than Wong Kim Ark and which also had a fact pattern of a person being deemed a citizen of the tribal lands on which he was born.
Point is, there is case law on both sides of the issue to be argued, and Wong Kim Ark didn't deal with someone who was present in violation of law.
Between Elk v. Wilkins, Wong Kim Ark, and In re Look Tin Sing, it's pretty clear that the only issue is whether the baby at the time of birth is subject to US law (you know, assuming that baby decides to go on a crime spree). Yes, the parents in Wong Kim Ark were "legal," but I don't see that as being dispositive. US law applies regardless.
Thats not so. Elk v. Wilkins held that "jurisdiction" doesn't just mean subject to criminal laws or something but subject to complete jurisdiction. Therefore, the Indian at issue was not a citizen because he owed allegiance to his tribe, a quasi sovereign entity. Wong Kim Ark didn't overturn that case. There is some dicta in that opinion that supports the more expansive view of the clause, but it only decided that children of permanent resident aliens born in the US fall within the clause. There is a tremendous, manifest distinction between permanent resident aliens such as Wong Kim Ark and the children of illegally present aliens. SCOTUS may decide the factual distinction does not matter under the 14th Amendment, but it has never addressed the question, and the case law still supports the restrictive interpretation.
As far as the article about wanting to void the 14th amendment it is interesting that when someone does not like an amendment, and argues for it to be abolished, that they equate it to a current situation. In this case that is the argument that the provision that one is automatically a citizen if born on U.S. soil, that such needs to be overturned because we have a huge immigration problem that the founding fathers could never have envisioned.
However, if the very same person, who wants this 14th amendment provision abolished, wants to protect a different amendment that has come under attack(most commonly the Second Amendment and the right to bear arms) they will argue original intent, that we should be strict constructionists, judicial and legislative activism must be avoided ,and that the constitution should never be amended based on dramatic societal changes over the decades.
At least lets be consistent. It is intellectually dishonest to holler original intent and that we should be strict contructionists,and avoid judicial activism at all costs when someone wants to change or abolish an amendment we support, but then turn around and ignore all those arguments and concepts when it is an amendment we don't care for and would like to see eliminated.
This comment has been removed by a blog administrator.
12:07 — Please elaborate.
12:07's beef against former counsel was denied. 12:07 didn't like that, and thinks it's because bar counsel is too lenient. Couldn't possibly be because the complaint was loony toons.
My guess is that 12:07 is also 12:37, 2:09, and 3:41. Probably 3:19 as well.
4:53, I am sure that it is.
The only people who defend bar counsel is bar counsel.
The complaints with prior bar counsel tended to be that he was far too punitive. Now the complaint is that the new one is too lax?
Impossible to satisfy some people.
Are you not entertained?
I don't know if it makes you feel any better, but bar counsel screwed me over as well, so you are in good company. They ignored north of six blatant ethics violations.
Who is the new person?
Exactly, who is he? His first name is Ryan, his last name is Hoagee (sp?).
One case does not make "too lenient." Let me know when years of cases fall on the lenient side. With that said, I know some of the Asst. Bar Counsel. They knew that things had gotten wacky between Hardesty and Hunterton but just shrugged it off with the Nuremburg Defense.
Off topic – My client wants to hire an “asshole” who will do things I’m unwilling to do – such as send aggressive emails, accuse opposing counsel of various nonsense ….any recommendations?
I recommend you fire your client and decline to recommend any other attorneys.
Solid recommendation, 4:54.
@4:40 here – thank you both. I agree. I need to grow a pair and tell the client to hit the road.
Yep. I've had one or two like that over the years. It is not worth it. There will be other clients.