Mike Davis, a chief counsel for the nominations of Neil Gorsuch and Brett Kavanaugh and a judicial advisor and friend of Donald Trump, is worried that the Supreme Court will rule against Trump's executive order wiping out the 14th Amendment's birthright citizenship provision.
Davis' main argument is an interpretation of the phrase "subject to the jurisdiction thereof," which requires more than physical presence but also allegiance to the US. Davis claims children born here to migrants don't meet his standards that guarantee U.S. citizenship.
Davis joined podcaster Steve Bannon after Solicitor General John Sauer's oral arguments with the Supreme Court.
DAVID: He made a compelling case why the 14th Amendment does not provide birthright citizenship to illegal aliens, just like it did not provide birthright citizenship to American Indians.
And Congress did that by statutes later on. So I would say this: if the Supreme Court follows the clear law here, this is a very easy case.
It should be six to three, saying that birthright citizenship is not for illegal aliens, right?
If the Supreme Court follows the politics, we could see a seven-to-two decision for birthright citizenship for 1.5 million Chinese birth tourists. And I'm a little bit nervous it may be the latter by statute.
Someone is sweating bullets. If the Supremes made a "political" decision, it would be to side with Demented Donald.
DAVIS: If American Indians did not have birthright citizenship under the 14th Amendment, how the hell would illegal aliens?
And then you have to ask this further question. Do you think we fought a civil war to give birthright citizenship to 1.5 million Chinese birth tourists?
Do we think that we should have over a million Chinese nationals who have American citizenship and live in China and mail in their ballots from China into American elections and take Social Security and other welfare benefits back in Beijing?
I don't think that's what the proponents of the 14th Amendment were trying to accomplish.
And I don't think that's what the public understood what the 14th Amendment was trying to accomplish.
Davis is wrong on the Native American ruling. The Court in 1884 concluded that John Elk, a Winnebago man born on a reservation, was not a citizen even though he had moved to Omaha and renounced his tribal allegiance.
The court didn't view reservations as being US soil.
WIKI: "In a 7–2 decision, the Supreme Court ruled that even though Elk was born in the United States, he was not a citizen because he was not subject to the jurisdiction of the United States when he was born on an Indian reservation. The United States Congress later enacted the Indian Citizenship Act of 1924, which established citizenship for Native Americans previously excluded by the Constitution."
Sauer used Davis' nonsensical Chinese birth tourists, but that landed like a lead balloon.
ROBERTS: Well, it certainly wasn't a problem in the 19th century.
SAUER: No, but of course, we're in a new world now, as Justice Alito pointed out, to where 8 billion people are one plane ride away from having a child who's a US citizen.
ROBERTS: Well, it's a new world. It's the same Constitution.
SAUER: It is.
Davis's claims are not valid, and the Supreme Court appears to think that as well, which has Davis flummoxed. He is coming unglued against the Supreme Court he helped facilitate.
"So I think that these Supreme Court justices should think long and hard about this decision because if they actually give birthright citizenship under the 14th Amendment to 1.5 Chinese nationals living in Beijing, they are going to destroy, and I mean destroy, the legitimacy of the Supreme Court," Davis said.
The court's legitimacy has been questioned ever since Mitch McConnell blocked President Obama from replacing Antonin Scalia after he died almost a year before the 2016 election
