I wonder what would the government argument be when they try to remove or imprison those aliens who the EO claims to not be under its jurisdiction...

+1 for "This." And that is the whole point of the Executive Order: to get the whole business into the courts, and to take it all the way to the Supreme Court, which can overrule its previous decisions. Whether they will is the next question.

@littleadv under the previous rulings, the lower courts have to rule against the government after all appropriate steps in court are taken - while enjoining the government to do anything in this regard on day 1. It'll only take a few months...

@littleadv (from a YT video I watched yesterday) probably something about hostile occupation (I wouldn't be surprised if because of that we see an even further increase of phrasings along the line of "invasion" by migrants, regardless of any actual meaning of the word). The current Supreme Court is known to play incredibly loose with definitions and words to pass their ageda so I wouldn't be surprised if they let such a longshot fly.

No matter who wins in the District Court, this will be appealed up the chain until it lands on the doorstep of the Supreme Court. — sounds like the lower courts are wasting their time, then?

@littleadv: "when they try to remove or imprison those aliens who the EO claims to not be under its jurisdiction" Technically, the EO only claims that the children (born at least 30 days after the EO) are not subject to its jurisdiction, not the parents. And the newborns are not going to be prosecuted for anything anytime soon.

@gerrit It still has to go through them as part of the legal process. The Supreme Court can only hear cases appealed to them, other than a very small number of cases that fall in their ‘original jurisdiction’.

@gerrit It is possible, though unlikely, that the supreme court can decide to not take up the case and let the lower courts ruling stand.

@JoeW: Assuming that all of the lower courts uniformly reject the EO as Wong Kim Ark seems to require, I could imagine SCOTUS deciding that it's not worth bothering to hear an appeal. But if the Fifth Circuit, or any other circuit court, comes up with some creative reinterpretation of Wong Kim Ark and upholds the EO, then it is difficult to see how SCOTUS could justify turning down an appeal.

@gerrit the lower courts are the ones that build the record that will (presumably) end up in the Supreme Court. SCOTUS is an appellate court that doesn't consider original evidence, but rather the evidence and product of another court's work. (In most cases, and this would be one of those.)

@littleadv not taking a position on the EO to be clear, but there's nothing inherently inconsistent about saying "you're not under our jurisdiction" and also "you're not allowed to be here". Notably, diplomatic staff are already acknowledged to not be under the jurisdiction of the US, yet the US can expel them at will.

@user111403 that's not entirely true, the US cannot "expel them at will", it needs to ask the foreign government to recall them (which the foreign government by convention would be obligated to do). The US cannot forcibly remove diplomats without violating their status. Which is exactly my point.

@littleadv it absolutely can expel them at will, by convention they ask them to go nicely, but if they refuse to go, the US is not going to sit and say "welp, nothing we can do about it". Similarly, if someone is caught crossing the border illegally (or even rejected attempting to enter legally), no reasonable person would expect the interpretation to be "you're not supposed to be here, but you're not under our jurisdiction so I guess I'll just have to let you go". I find the interpretation in the EO dubious but the inconsistency you're suggesting really isn't there.

@user111403 you say that, but that's not true. Sure, the US can physically restrain a diplomat and put them in a plane, but as long as they're dully accredited that would be a violation of the Vienna convention.

@littleadv on the contrary, if the sending nation refuses to recall a diplomat, under the Vienna convention the host nation can refuse to recognize them as a member of the mission and can, in fact, restrain them and put them on a plane (note that the sending state would already be in violation of the convention in this case). What do you think would happen if a government refused to recall its diplomats?

@user111403 by refusing to recall the sending state loses accreditation, and as such - the diplomatic immunity. At that point the persona non grata becomes subject to the host jurisdiction and then can be forcibly removed, or arrested or whatever. That distinction seems to not be clear to you.

@user111403 "no reasonable person would expect the interpretation to be 'you're not supposed to be here, but you're not under our jurisdiction so I guess I'll just have to let you go'." -- As a layman but hopefully reasonable person, rechecking the definition of "jurisdiction" and seeing "extent of authority", the interpretation I wouldn't expect is to say "You're not in my extent of authority, so I can't give this benefit you'd qualify for under my authority, but you're in my extent of authority, so I get to assert my authority over you and penalize you." That's trying to have it both ways.

@littleadv the distinction is clear, but I unapologetically maintain that being able to tell a diplomat "either you leave voluntarily, or your country breaks a treaty and you leave anyway" is comfortably encompassed within the statements "can expel at will".

@JoL I have authority over an area. I get to make rules for that area. I get to choose who is allowed into my area. I have no authority over people outside my area and they aren't subject to my rules. If someone enters my area without my permission, and I remove them from my area, I am merely exercising my right to choose who enters my area. This in no way implies that the person is subject to my rules, except in the sense that they can't enter without my permission, in which sense literally the entire world is subject to my rule and the term is meaningless.

@user111403 "This in no way implies that the person is subject to my rules, except in the sense that they can't enter without my permission" -- This is a whole lot of gymnastics. So, people entering don't have to obey any US law except those on who gets to enter? Or would you say that they're not subject to your rules except for all your rules? Simpler to say that they are subject to your rules. If you have authority over an area, that means people in it (birthed in it or not) are subject to your rules. The rules aren't for the dirt constituting the area, it's for the people in it.

@JoL the point is that the normal/correct procedure is an implied contract - I agree to let you in, you agree to follow my rules. When you enter without my permission, that contract is not in place. I'm within my rights to remove you from my area, perhaps even extract compensation for any damage you did inside my area, but we are not operating under that normal contractual arrangement. Your version may be simpler. It's probably even correct, at least for the US, and I expect it to be upheld as such by the courts. But it doesn't follow that Trump's interpretation is logically inconsistent.

@user111403 oh, your argument is that Trump thinks transactionslly and doesn't follow the rules of law, so any interpretation seems valid for him and his supporters? Maybe, but that's for the politics stack. Here the discussion is about laws, not beliefs.

"this court upturns what is settled law" When they overturned RvW... they overturned what overturned "settled law". Judicial activism in response to judicial activism. You can't support RvW overturning law and then cry about RvW itself being overturned. Likewise, previous laws get overturned all the time and have happened under previous SCOTUS courts.

@user111403 the US can't physically deport diplomats as it can other aliens. The Vienna convention provides for diplomatic immunity to lapse after a period of time if a diplomat fails to leave after there end of his duties; once that happens, the US can take custody of the diplomat for deportation or other purposes (and a child born after that point would be a US citizen).

@littleadv see my previous comment -- it wouldn't violate the Vienna convention if they waited until immunity lapsed. In other words, you're absolutely right: other than in very exceptional situations, the US can't physically remove diplomats (or, relevantly, their family members) from its territory.

@user111403 that may be true, but the details are rather different from deportation, specifically because the diplomat is "immune from the jurisdiction of the sending state."

@user111403 but illegal aliens are subject to US laws. If they murder someone, for example, they are liable to arrest, prosecution, and conviction. A diplomat or a member of a diplomat's family is not.

@gerrit the supreme court might not take the appeal. If the courts of appeals all agree, and the supreme court does as well, then they can just let the lower courts' rulings stand.