[guest post by JVW]

According to Military Times:

KABUL, Afghanistan — Five members of the Afghan Taliban who were freed from the U.S. military prison at Guantanamo Bay in exchange for captured American Army Sgt. Bowe Bergdahl have joined the insurgent group’s political office in Qatar, Taliban spokesman Zabihullah Mujahid said Tuesday.

They will now be among Taliban representatives negotiating for peace in Afghanistan, a sign some negotiators in Kabul say indicates the Taliban’s desire for a peace pact.

It’s not as if the decision made by the previous White House occupant to trade those five in return for a nutty deserter wasn’t without controversy, even very serious controversy. And naturally, our smug ex-President assured us that this was the most reasonable decision, the reaction of the deal’s critics was simply overwrought, and the liars and jerks he employed in Administration set about smearing every dissenter, which Patterico cataloged for us several months later. And Dana pointed out that there were plenty of other American citizens held overseas that were more worthy candidates of the State Department and Defense Department efforts. But hey, our ex-President pretty much tipped his hand that he knew this would likely be the end result.

Thanks Obama.

– JVW

[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 on it, is out of the question…]

(Cross-posted at The Jury Talks Back.)

–Dana

Millennials explain to New York Magazine why they haven’t ever voted. The primary reason appears to be: mailing things is too hard.

Tim | Age 27 | Austin, Texas | Has Never Voted
I tried to register for the 2016 election, but it was beyond the deadline by the time I tried to do it. I hate mailing stuff; it gives me anxiety. I don’t remember seeing voter-registration drives, no. I’ve seen a lot more the past two years. I’m sure there must have been stuff. I just don’t remember it.

. . . .

Megan | Age 29 | San Francisco, California | Last Voted: 2014
I rent and move around quite a bit, and when I try to get absentee ballots, they need me to print out a form and mail it to them no more than 30 days before the election but also no less than seven days before the election. Typically, I check way before that time, then forget to check again, or just say “Fuck it” because I don’t own a printer or stamps anyway.

. . . .

Jocelyn | Age 27 | Arlington, Massachusetts | Last Voted: 2016
It was easier to get my medical-marijuana card — not a right, or even federally legal — than it was to register to vote. Massachusetts had online registration but only if you have a DMV-issued ID. I don’t drive, so I was like, okay, I can register in person, but I’m also dealing with a chronic illness. Every day is a guessing game: Am I going to feel up to doing anything today? I put it off. The week before the deadline, I ended up being really sick and I wasn’t able to leave home. You can send in your registration by mail, but I didn’t have stamps. I kept thinking that I shouldn’t have to jump through this many hoops to register.

. . . .

Anna | Age 21 | New York, New York | Has Never Voted
I’m trying to register in my hometown of Austin, Texas. It’s such a tedious process to even get registered in Texas, let alone vote as an absentee. There’s no notification service about the status of my voter registration. There’s a small, outdated website where you can enter your information and check. When I was at the post office to register, this poor girl, clearly also a college student like me, didn’t know what “postmarked” meant and had no idea how to send an important document by mail. Most people my age have zero need to go to the post office and may have never stepped into one before. Honestly, if someone had the forms printed for me and was willing to deal with the post office, I’d be much more inclined to vote.

This obviously reveals a big problem with our country.

Mailing has become too hard.

That’s why I’ll be writing my Congressman to urge him to support a new law that makes it easier to mail things.

Ah, shit, never mind, I don’t own any stamps. I guess I could email him but then I’d have to Google and have you tried using Google lately? Totally hard.

If I had more time, I’d do a riff from The Coddling of the American Mind about how helpless young people are these days. Just read it and you’ll see what I mean.