This morning, news broke that President Trump intends to end “birthright citizenship” for illegal aliens by executive order. It is certainly a bold stroke, and undeniably a blatant political move coming right before the midterm elections next week. But before everyone gets themselves into a lather over the announcement, we need to stop and realize that this is a dance in multiple parts. Specifically, there are questions it raises and we don’t even have the text of the proposed order to begin working with yet. However, we can break the announcement into three distinct parts, just based on the interview the President gave to Axios. The first is, does the President have the authority to make this change to citizenship requirements? Secondly, if the President does have the authority, would such a change to citizenship standards pass Constitutional review? Finally, assuming questions 1 and 2 can be affirmed, how would such a change be implemented?
As to the first question, it is extremely doubtful the President can unilaterally change citizenship standards. There are steps he could include in a concurrent executive order that would have the same effect as changing citizenship standards without actually touching on any of the relevant Constitutional issues a Presidential end run would create (I’ll touch on those when I discuss the third question).
The reason I doubt a President can ignore the wishes of Congress when setting citizenship standards is found in Article 1, Section 8, Clause 4 of the Constitution:
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
I have little doubt the President will attempt some weird workaround. The most likely method will be by declaring that since Congress has failed to act on the question of citizenship in any meaningful way since the passage of the Immigration and Naturalization Act of 1952 (or as it is commonly referred to, the McCarron-Walter Act, 8 USC Chapter 12), nor has it even attempted to amend the law in 17 years, then he can by means of his powers in the Opinion Clause amend the law on his own. This is a serious misreading of the powers enumerated in Article 2, Section 2, and I cannot see any possible way any court in the country would let this stand.
So, what is to be gained by a move any pre-law student can see is futile? Well, this was one of the President’s campaign planks. What’s more, while I am certain the media will hyperventilate while mentioning “the President’s base” when talking about this, what they won’t tell you is that ending birthright citizenship for illegal aliens has consistently polled around 65% approval. It is a winning issue for him, and this Kafkaesque method of getting people talking about it again will prove that, even if the “Morning Joe” panel begs to disagree.
So, as to the second question, should Congress move on the President’s request to limit birthright citizenship, would it pass Constitutional muster? This is the biggest question that needs to be answered, and you can bet the legal challenges will be flying should such a bill ever get passed. I posted the relevant portion of the Constitution at the top of this post. This is referred to as the Citizenship Clause, or Section 1, of the 14th Amendment, and on first blush, it reads as simply being born in the United States immediately confers citizenship to you. This is actually the furthest thing from the truth, and the key part is the part that states “and subject to the jurisdiction thereof.” In other words, the authors of the 14th Amendment understood from the outset that not everyone born on US territory should automatically be granted citizenship.
That’s because their principle concern in authoring the 14th Amendment was redressing some of the more pernicious aspects of readmitting former Confederate states into the Union. Among these were citizenship, the right of representation, due process protections, and debts incurred by the former Confederate states to foreign powers (yes, all those questions are addressed in the 14th Amendment). They understood the amendment would cover the issues in broad brush strokes, but that further tweaks over time would be needed. So they included section 5, which states
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
In fact, it was by this clause that Congress finally granted citizenship to Native Americans in 1924, under the Snyder Act, as well as to residents of most American territories (Puerto Rico by 8 USC 1402, the US Virgin Islands by 8 USC 1406 and Guam by 8 USC 1407). Those last three acts were passed in the 1950’s. Even though those territories had been part of the United States since the end of the Spanish-American War in 1898, persons born there were not considered US citizens prior to that. We’ll be revisiting this shortly.
Now back to the Citizenship Clause. The authors understood that not everyone born on US soil should automatically be entitled to US citizenship. The phrase “subject to the jurisdiction of” has been hotly debated in Constitutional circles for better than a century. There are plenty of articles arguing the exact meaning “jurisdiction” as it applies to the 14th Amendment, and you’re certainly welcome to do the research for them. However, they break down into two general categories. The first holds that “jurisdiction” refers to allegiance to the United States, and requires the person does not hold allegiance to a foreign power or be in a state of rebellion against the United States. This is backed by the intent of the Citizenship Clause: it was intended to ensure that prior to re-obtaining their citizenship, the former Confederates had renounced their rebellion. The secondary purpose was to override the Supreme Court’s Dred Scott decision of 1857, which held that former slaves were not citizens of the United States and therefore not entitled to due process protections (also addressed in the Due Process Clause of the amendment).
The second interpretation is the one most commonly held by the media types, that “jurisdiction” refers to being liable to the laws of the United States. Under this explanation, anyone born on US soil is a citizen, unless recognized as a citizen of a foreign power (for instance, the child of an ambassador), since everyone is subject to US law.
You might think this is already settled law, based on the common narrative. Actually, it is anything but. The question has only partly come before the Supreme Court once, in 1898. In US v Wong Kim Ark, the court held that the children of legal immigrants are entitled to birthright citizenship. The precedent of jus soli (or by soil) was affirmed for this purpose, but the principle of jus sanguinis (or by parental right) was not disavowed, either. Further, the idea that sanguinis takes precedence over soli is further affirmed by those acts I mentioned above: the ones that granted citizenship to residents of certain territories. And if you’re ready for your head to explode, there are still two US territories where birthright citizenship is not granted: those born on American Samoa or the Swains Islands are considered US nationals, but not citizens.
What all of this means is there is enough ambiguity to ensure that should Congress act under their Section 5 powers of the 14th Amendment to restrict the establishment of the Citizenship Clause to legally admitted residents, then a Supreme Court case is certain. The outcome isn’t, but given the current court’s alignment, an affirmative decision in the President’s favor is most likely.
Finally, I mentioned that the third question – what can the President do in the meantime – is rather substantial. I’ve already demonstrated the President does not have the authority to rewrite the laws around citizenship on his own. However, he does have the authority to affect how those laws are enforced. There is a multitude of actions he can order that, while not ending birthright citizenship for illegal aliens, would severely curtail their ability to exercise it. This could begin at birth, by requiring the Social Security Administration to have all parents complete a paper form that would include proof of parentage and parental citizenship, with documentation, prior to issuing a social security number to any newborn. It would inconvenience everyone, but you have to imagine the change to the process (it currently takes about ten minutes to get a social security number for a newborn) and document requirements would scare off most illegal parents. He could order that all birth documents be submitted to the National Archives. He could require all parents be fingerprinted and run through the FBI NICS, similar to how we require background checks for purchasing a firearm, prior to a birth certificate being issued.
These are all hypothetical possibilities, of course. But they serve the same purpose. They telegraph in clear terms that the children of illegal aliens are not welcome, and the “anchor baby” concept is effectively over – regardless of what the Supreme Court eventually decides.
My daddy always told me that only fools complain without having a solution. Ok, he used more colorful language – after all, he was a Navy man. But this is the PC version of some rather sage advice.
I mention this since day before yesterday I wrote a bit about my frustration (and based on the responses I’ve read, yours as well) with Congress’ unwillingness to actually do anything about immigration, or DACA, or the budget, or pretty much anything else. But I’m following my daddy’s advice. Now, you can say I’m as mad as a hatter. In fact, I’m pretty sure some (if not all) of you will think so by the time we get to the end of this. Then again, if you’re following me here (or on Twitter or Facebook) you probably already think I have a screw or two loose, so what have I got to lose?
First up, these are all separate issues. Stop the grandstanding. Please. The fate of illegal aliens brought here as children is not related to how much we pay our servicemen. How many people we let in (and how we decide who those people are) has nothing to do with kids brought here when they belonged somewhere else. Trust me on this. How many people are employed by the EPA (or even if there should be an EPA) is a completely different discussion from what to do about the roughly 8 million illegal aliens who wouldn’t be covered by some sort of “DACA fix.”
So, do the simple stuff. The House passed all twelve of the appropriations bills for this fiscal year last September. Pass those out of the Senate. That is entirely up to Democrats. If they ended their charade now, they could pass the current CR tonight, then spend the next month debating those appropriations bills and where there are differences with the House bills, go to conference to hammer them out. That is the “regular order” which liberals spent all last summer demanding the Congress return to, but have conveniently forgotten about now that they want to execute “leverage.” Have I mentioned recently what a bunch of hypocrites politicians are?
Second, stop pretending Congress can only work on one issue at a time. Or, if there are congresscritters who can only tackle one problem at a time, they need to retire immediately. Think about your job. How long would you be employed if you couldn’t do more than one thing a month? Oh, you would be looking for another job? Then why haven’t your fired your representative?
Of course Congress can address multiple issues at once. So while debating the appropriations bills, there is nothing stopping them from beginning real work on all those other issues.
And here’s my proposals around each of them.
The DACA program ends on March 5. So address that first. My position hasn’t changed since the President first announced he was ending the highly illegal program. Grant those who’ve applied to the program permanent residency. Allow those who have reached adulthood and lived here for at least ten years, without incurring a felony charge, to apply for citizenship immediately. Otherwise, it’s the same restrictions as for any other alien resident. See, that was simple.
Next, all other illegal aliens (or undocumented migrants, or whatever the term du jour happens to be): they gotta go. Again, my position hasn’t changed since I first wrote about this 4 1/2 years ago. And yes, proper and aggressive enforcement of our immigration laws will get the majority of them to self-deport. Nobody wants to live in a place where they can’t eat.
Our immigration system needs an overhaul for current times. The idea of “diversity visas” and lotteries is not just stupid, but asinine and awkward. For my less prurient readers, it’s like getting drunk, walking into a whorehouse, grabbing the first available girl, and going off to do your thing without wearing a condom. You’ll spend the rest of your life regretting that decision – and that’s if it didn’t kill you. We obviously can’t take everyone who wants to live here, but that gives us leverage. We can pick and choose, and we should pick the very best candidates. And we should have back-end enforcement of that selection process: anyone granted alien residency in the United States should be required to become a citizen within ten years of arrival – or they should be sent packing.
As an aside to that point – I can’t recall where I read it, or heard it, but there was a legal resident who said she would never become a US citizen, because she was proud to be Jamaican. I have no problem with her being proud to be Jamaican; it’s a beautiful island with some great people. But be a proud Jamaican in Jamaica. If you’re going to live here, then you need to be a proud American. That shouldn’t even be up for discussion. And anyone not willing to give up allegiance to their country of origin should not be granted residency here.
What this means in practical terms is ending the hodge-podge of work and travel visas that currently muck up both our immigration system and allow so many illegal aliens to stay here after their visa expires. No more H-1B or H-3N or any of that other nonsense. You can get a tourist visa to visit, or you can get a residency visa. Period.
Finally, there is the both the federal debt and federal deficit. We aren’t even in February yet, which means there is plenty of time to start working on these problems now, before the appropriations bills for FY2019 have to be ready. Before Congress gets to work on them this time, I would have them ask themselves one thing: if 40% of what the federal government does is “non-essential,” why is the federal government doing those things? Think about it. Our budget deficit is about $600 billion, on around $4.2 trillion of spending. A little math says the recently passed tax bill, assuming no increased revenues from economic growth, will add $180 billion to that deficit. A little more math says reducing federal spending by 40% would yield around a $900 billion surplus. That won’t get rid of the nearly $21 trillion federal debt, but it sure will put a serious dent in it.
Okay, that’s a lot for now, I realize. This ending the partisan idiocy that grips Capital Hill is enough to send your head spinning, but the solutions aren’t that hard. They certainly aren’t as hard as the heads of our congresscritters. But that’s where it’s up to you. If they won’t do the job, then it’s time to fire them all.
You get your chance (again) in November.