The Jury Talks Back

10/30/2018

President Trump Set To Sign Executive Order He Believes Will End Birthright Citizenship

Filed under: Uncategorized — Dana @ 9:39 am

[guest post by Dana]

Seeking to further rally his base around a key campaign issue just one week before the midterms, President Trump said in an interview that he is prepared to sign an executive order ending the 14th amendment protections for babies born to non-citizens and illegal immigrants:

Trump told “Axios on HBO” that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.

When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)

“It’s in the process. It’ll happen … with an executive order.”

The 14th amendment says:

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.

Axios notes the disagreement between legal experts:

Few immigration and constitutional scholars believe it is within the president’s power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.

But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.

John Eastman, a constitutional scholar and director of Chapman University’s Center for Constitutional Jurisprudence, told “Axios on HBO” that the Constitution has been misapplied over the past 40 or so years. He says the line “subject to the jurisdiction thereof” originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.

Michael Anton, a former national security official in the Trump administration, recently took up this argument in the Washington Post.

Anton said that Trump could, via executive order, “specify to federal agencies that the children of noncitizens are not citizens” simply because they were born on U.S. soil. (It’s not yet clear whether Trump will take this maximalist argument, though his previous rhetoric suggests there’s a good chance.)

But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be “unconstitutional.”

Here is Ilya Shapiro discussing the birthright citizenship amendment from a few years ago:

[W]hat about illegal immigrants? Illegal aliens and their children are subject to our laws and can be prosecuted and convicted of violations – unlike diplomats, who enjoy certain immunities, and unlike foreign invaders, who are generally subject to the laws of war rather than domestic civil law. The illegal immigrants’ countries of origin can hardly make a “jurisidictional” claim on kids born in America (at least while they’re here). Thus, a natural reading of “subject to the jurisdiction” suggests that the children of illegals are citizens if born here.

On the other hand, the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration. “Subject to the jurisdiction” probably meant primary allegiance to the United States as a sovereign.

My sense of the constitutional question – again setting aside my policy view that more liberal immigration laws (accompanied by vigorous border control to prevent crime, terrorism, and public-health issues) would resolve much of the illegal-alien problem – is as follows.

When the original public meaning of a legal text is unambiguous, you have to adopt that meaning unless it leads to absurd consequences. Here, the consequences may well be irrational and self-defeating: We prohibit unauthorized entry while offering an inducement, giving citizenship to the children of those who violate the law. So if Congress were to deny citizenship to children of illegal aliens, the Supreme Court might not declare that law unconstitutional. It’s a close call (read the strong arguments pro and con constitutional birthright citizenship by my friends Jim Ho and John Eastman, respectively).

Would the Court consider the consequences of a textual meaning that gives birthright citizenship to the children of illegal immigrants to be absurd? If so, the intent or purpose of the Fourteenth Amendment’s enactors might trump the text. On the other hand, and being realistic, if Chief Justice John Roberts can find that a mandate is a tax and that a federal exchange was established by a state, there’s no way that the current Supreme Court would eliminate birthright citizenship for anyone.

Also, make sure to read Ed Morrisey’s analysis of the 14th amendment and a decision called U.S. v. Wong Kim Ark.

[I guess thinking this should be done by an Act of Congress and the President’s signature is out of the question…]

–Dana

5 Comments »

  1. I think the lawyers have overlooked a trick.

    Consider the conditions under which those three amendments were passed.

    You could argue that they were invalidly passed, if the Radical Republicans did so as a result of a criminal conspiracy to deny Democrat voters representation, voting rights, etc…

    What does that have to do with the price of Tea in China?

    The Amendment is valid under a theory which upholds the actions of Lincoln, Grant, and Sherman in suppressing that act of rebellion. In particular, that theory endorses certain interpretations of the executive powers granted to the Presidency in times of war or rebellion. Which isn’t pertinent most of the time, because those circumstances are rare.

    We are fortunate that the modern Democrats, in deciding to throw a hissy fit over an election they, like the 1860 election, screwed up and lost, are more Copperhead than Confederate. So Lincoln’s theory of Presidential powers during outright civil war has not been tested again.

    But Honduran expeditionary martyr brigades might bring that back into play. Burning American flags and marching en masse to the border would be a pretty clear sign if the arms had already been distributed.

    Comment by BobtheRegisterredFool — 10/30/2018 @ 10:01 am

  2. I’m a strict constructionalist, so reading this headline gave me chills; as much as I oppose birthright citizenship, the constitution is the constitution and I cannot support any infringement of it.

    Due to not knowing exactly what legal argument Trump has in mind, I have no idea whether I’d favor him trying this.

    But, the actual text of the 14th amendment has an exclusion, “under the jurisdiction thereof”. Would children born to an actual invading army be US citizens? Not per that. Same goes for diplomats, though diplomats are somewhat under US jurisdiction in that they have to obey some US rules plus applicable treaties, such as leaving when told to do so.

    So, as a thought experiment, would an American Indian born on a reservation be a US citizen under the 14th? The argument against is that tribal members owe first allegiance to their tribe, so no. What if they renounce tribal membership and live in non-reservation US territory? The argument is still no, if born on a reservation.

    This isn’t hypothetical. This is a US Supreme Court precedent on the 14th amendment’s citizenship clause. Here’s a summary of their decision in the case (Elk Vs. Wilkins)

    *”Thus, born a member of an Indian tribe, even on American soil, Elk could not meet the allegiance test of the jurisdictional phrase because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, not to the United States. The Court held Elk was not “subject to the jurisdiction” of the United States at birth. “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”*

    So, if the allegiance part of the interpretation of “under the jurisdiction of” requires allegiance of the parents, as it does per the US supreme court, then being in criminal defiance of US law by being here would likewise exclude the children of illegal aliens.

    Comment by Arizona CJ — 10/30/2018 @ 2:19 pm

  3. Exactly Arizona CJ. The fact that these people are still under the jurisdiction of their home countries as they have not applied for nor gained lawful residency their children should not have citizenship conferred to them under the 14th.

    Comment by Sean — 10/30/2018 @ 6:15 pm

  4. I agree anchor babies are a problem for several reasons but how we deal with this problem matters for legal and practical reasons. Focusing on a newborn’s birthplace is an easy rule to apply. Focusing on the parents’ birthplace isn’t as easy, nor is focusing on where the parents owe their allegiance.

    We have a big enough problem with vetting immigrants. I think it is better to focus on border security and stopping visa overstays.

    Comment by DRJ — 11/2/2018 @ 8:55 am

  5. Hi Arizona CJ,

    the Supreme Court decision in Wong Kim Ark cites precedent going back to pre-colonial England in support of the proposition:

    > Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

    but then we can get into a debate about whether or not short-term visitors are domiciled here.

    But it also says

    > The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.

    which seems a bit more clear.

    Comment by aphrael — 11/2/2018 @ 10:29 am

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