Common Law will only port other common law rulings. For example, most nations with Common Law systems have the same rules for negligence, which come from a ruling that originated in Scotland. But, the U.S. does not use Common Law standing from other countries all the time, as they must comply with the Constitution (i.e. Defamation in the U.S. is vastly different than any other common law systems). International Porting is allowable but not mandatory. Continental Europe would not ordinarily get ported as the use Civil Law systems.

You answer is important as it is the only one so far that includes the basis of the argument for the executive order. It would be more complete if you added 8 US Code 1401 which repeats the "Subject to the Jurisdiction thereof" as the true intent of the 14th amendment. Further the 14th amendment is tied to give newly freed slaves all the rights of citizenship and, as the author of the amendment Sen. Jacob Howard said, "...will not of course include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers"

@FrankCedeno Any reference for: "Sen. Jacob Howard said, "...will not of course include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers""?

@AloneProgrammer memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/… reference for quote

@hszmv "Common Law will only port other common law rulings." This isn't true, as you go on to say and show yourself. You refer to Donoghue v Stevenson, but Scotland isn't really a proper common law jurisdiction... so not exactly a great example to illustrate your point to begin with. And in Europe now, through the auspices of the ECJ and the ECHR as well as in national courts, decisions with an origin in one system (common or civil) travel to the other routinely; civil and common law are not as resolutely never-the-twain-may-meet divorced as they once were.

You've got the better portion of an any answer I'd add, so I'll just recommend the following. A rebuttal to Trumps action will like reference US v Wong Kim Ark, a SCOTUS case about the citizenship of the son born to Chinese migrants during the Chinese exclusion act. The response is to refer to the final paragraph of the decision, where it references his parents "domicil and residency." In the case of illegal immigrants, they don't have a condition of residency in the us, because they've bypassed immigration law.

It may just be me, but if you say someone isn't subject to the jurisdiction of the US, wouldn't that mean you couldn't arrest them, try them, and kick them out? I feel like that's the opposite of the intended result.

This answer would be better if you explain how Trump argues people in the US illegally aren't subject to our jurisdiction.

@AzorAhai Trump hasn't made that argument yet, and we aren't privy to the advice of his council.

@Bobson Differing understanding of the word jurisdiction. Visitors are still subject to laws, but are they considered residents of the nation ?

@DrunkCynic: "but are they considered residents of the nation ?" - What does that have to do with jurisdiction? If I am travelling through a city or state that I am not a resident of, and commit murder there, I am under the jurisdiction of that city or state. What definition of jurisdiction are you using that is equivalent to residency?

@DrunkCynic It seems you want to prosecute visitors or foreigners or whatever alien people under the "nation" laws but you are saying they are not under the US jurisdiction, which seems to me like a double interpretation of law whenever it is aligned to your interests...

"that won't be applied retroactively" do you have any evidence to support that claim?

In the land and not "subject to the jurisdiction thereof" is not a situation any nation would create deliberately unless they want people to literally get away with murder.

@FrankCedeno the Howard quote looks like a confusion of punctuation. It is transcribed speech, after all. It seems that he intended to say that the amendment doesn't apply to those foreigners and aliens who belong to the families of ambassadors or foreign ministers (rather than that it doesn't apply to foreigners and aliens in addition to the families of ambassadors etc.). This makes sense in context, which is discussion of whether to exclude "Indians not taxed." The conclusion was that this was unnecessary because they are already, like ambassadors, not subject to US jurisdiction.

@Joshua but exactly that situation exists for diplomats, who literally can (and sometimes do) get away with murder if the sending state refuses to waive immunity.

@Joshua: There is a common situation where people are in the land (any country, not just the US) but not subject to its jurisdiction: diplomats. See e.g. en.wikipedia.org/wiki/Diplomatic_immunity

@phoog You need to go deeper into the quoted material for the back and forth with a Californian congressman that greater expands on Howard's reasoning. Damn the lack of an Oxford comma.

@DrunkCynic I read the whole thing and I didn't see anything inconsistent with my interpretation. Can you describe what you're talking about or where it is?

@jamesqf that isn't the meaning of jurisdiction as used in the fourteenth Amendment and affirmative decision in US v Wong Kim Ark.

@DrunkCynic "that isn't the meaning of jurisdiction": which of jamesqf's comments are you referring to? Wong Kim Ark mentions the diplomatic immunity exception repeatedly and at length, so I can't imagine that you're responding to the comment about the diplomatic immunity exception.

@phoog I did, and I think the jurisprudence disproves your position.

@DrunkCynic what does the jurisprudence prove, and how? What is the meaning of jurisdiction in the 14th? Are you saying that diplomats' US-born children are citizens of the US?

"and subject to the jurisdiction thereof" < This statement focuses on the persons being born in the USA - it is not related to their parents. AND once you are in the USA (and this applies to almost every country) you are subject to its jurisdiction: if you commit a crime, you will be jailed or executed there (exclusion: if somehow special diplomatic relationships exist, like embassies and so). So yes: they will need another amend to make Trump's order constitutional.

@Bobson no, it rather means that they can be apprehended and kicked out without trial.

Obviously, it will make for a very interesting legal debate. Someone in the country illegally isn't subject to full US laws... they are subject to a subset that revolves largely around deportation. While the concept of birthright is noble, it has clearly been overtaken by events in the last few decades. Today, it serves as a magnet for illegal immigration. If we are to change the immigration laws, it should be done as the expressed will of the citizens, not by encouraging lawbreaking.

That's a Catch-22. If they are not subject to our jurisdiction, then how can we deport them, detain them or stop them from doing whatever they please? If I enter the country illegally, I am free to murder, rape and pillage with complete immunity? If not, then certainly I am "subject to jurisdiction." No, it really does not make for an interesting legal debate. I think almost any legal scholar will find this argument lacking or even laughable.

@tmgr: In civil suits, Scotland is as common law as anyone else. They are weird though, I'll give you that. Saying that Scotland is not common law jurisdiction is like saying the United States is because of Louisiana (still uses some French Civil law). For my purposes, it's a quibble, really. But in that case, it was a Common Law ruling for all intents and purposes.

@PoloHoleSet: The Vienna Convention does actually cover this. Any arrest of a non-citizen requires a signatory to allow that individual the right to council from the consulate of his or her home nation(s). We do this with every illegal alien already.

@hszmv - No, that does not even remotely relate to what I'm talking about, at all. Let me put it this way. I am a US citizen, live here, and have never been to Asia. Let's say I post something on a stack exchange that is deemed critical of China's system of government. Can they arrest me, here, in the USA? Can they demand that I be detained and extradited? Why not? Because they have no jurisdiction over me, as a US citizen, in the USA, for actions that are legal here. Everyone in the USA, except for heads of state and members of diplomatic missions, are subject to US laws. aka, "jurisdiction."

@PoloHoleSet: Extradition is not deportation, and is governed by specific treaties between two nations. With respect to China, I do not believe we have one, but even still, the United States does not extradite for crimes in the requesting nation that are not crimes in the United States (i.e. It's no crime to call the President for Life of China "President Winnie the Pooh" in the United States, so the United States doesn't extradite). If a Chinese citizen broke the law in the United States, and was not a US resident, we would deport him as part of the punishment.

@hszmv - I'm aware of that. That's my entire point - US laws have jurisdiction here, not Chinese law. If a Chinese citizen murdered someone in the USA, and they were not part of the diplomatic mission, we'd arrest and try them under US law. Because anyone in the USA is "subject to jurisdiction." My comment that you responded to makes the point that we can't claim that someone is NOT subject to jurisdiction, and then claim we can try to make them comply with our laws. It's a ridiculous claim that is being forwarded. Of course illegal aliens are subject to jurisdiction.

@hszmv an alien who is deported from the US after conviction for a crime is not deported "as part of the punishment." The alien is deported because under immigration law the person is no longer welcome in the US. But the judge sentencing the alien in criminal court will not say anything about deportation; it's an entirely separate action.

@jwenting how could someone be apprehended or kicked out if they're not subject to the law? Diplomats are of course the canonical example of people, and they cannot be apprehended because of that. They can be kicked out, though, for any reason or for no reason at all.

If a hostile nation launched a military invasion against our country, and while occupying our lands one of the female soliders gave birth, It would be hard to argue that they are subject to our jurisdiction (as defined in the congressional record) and therefore the child is a citizen. I think the same logic applies to all illegal invaders.

@Kelly, an occupying force is exactly one of the three cases where someone isn't subject to US jurisdiction. It seems obvious that illegal immigrants do not fit into this category, because they don't control any territory. See also Birthright Citizenship and the Constitution.

... I mean, I suppose one might try to make an argument about sanctuary cities, but I very much doubt it would stand up to legal scrutiny.

@HarryJohnston, but in fact illegal invaders would subject to our jurisdiction, specifically military jurisdiction. See link