One thing that seems clear to me is that an Executive Order isn't adequate for this action. Andy McCarthy gives a good account of why it wouldn't be:
The problem as I see it is twofold. First, the legal landscape is not limited to the 14th Amendment. Congress has enacted a statute, Section 1401 of the immigration and naturalization laws (Title 8, U.S. Code). In pertinent part, it appears merely to codify in statutory law what the 14th Amendment says: included among U.S. citizens is any “person born in the United States, and subject to the jurisdiction thereof.” But that means the issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted (it has been amended several times since then).I think that's roughly right on both points, although I'd suggest that the 1952 statute can't override the 1868 Constitutional Amendment's meaning -- otherwise we could by statute redefine any Constitutional term. Congress can't re-issue the Third Amendment by statute with a legislative statement to the effect that "quartering shall only mean permanent residence of troops in private homes, i.e., greater than ten years' duration," and thereby remove the Third's prohibition. Thus, the 1952 understanding can only alter the 1868 understanding in a fairly limited way; Congress might broaden the Third's protections, as by forbidding 'quartering' within 100 yards of a private home, but not limit it. Here, Congress might not be able to alter the 1868 understanding at all by mere statute.
Secondly, even assuming the meaning was the same, Congress’s codification of the 14th Amendment — which it did not need to do — is a strong expression of Congress’s intent to exercise its constitutional authority to set the terms of citizenship.
However, SCOTUS might find that the 1868 understanding wasn't so obvious that a later Congress acting in accord with a later President might not define it more clearly. If so, then what the Congress of 1952 can do, the Congress of 2018 or 2019 can also do. Sen. Graham is proposing to get the ball rolling on that. If the Republican Congress hands Trump a bill that reinterprets this clause formally, and he signs it into law, that would do whatever the 1952 law did to define the terms.
That might be nothing at all; SCOTUS may well say that mere legislation can't alter an amendment's terms, and that it feels that there is a clear enough record of intent from 1868 to apply. That's originalism, which many of us have long argued for as a judicial philosophy. You have to take the good and the bad of that. Birthright citizenship may simply be something we're stuck with pending a new Constitutional convention. Perhaps not, especially if they find the 1868 language unclear or in need of further exposition from the legislature. I think this expresses the range of constitutional possibilities.
16 comments:
I'm all over the map on this one. I doubt the EO route is a good one, and would rather see a S. Ct. decision; even better, a societal consensus. On the one hand, I dislike the idea that someone who was born here and grew up here would not be a citizen. On the other, it's barking mad to let people crash the border, have babies here, and then use the babies' citizenship as an anchor.
The whole thing really boils down to the impossibility of basing any rational immigration policy on a refusal either to enforce the immigration restrictions we have or to remove them legally. This is just chaos and tantrums.
I like the idea that America is a philosophy, and that we should be eager to accept new citizens who are in fact committed to the philosophy. But that tends to suggest to me that even people born in America to American citizens might not properly be American citizens themselves; some of them grow up to be Marxists.
If I were designing the system from scratch, I'd impose a service duty on citizenship that demonstrated adequate commitment to what we used to call The American Way in order to obtain the right to vote. Starship Troopers, or something like it.
Since that isn't going to happen, all I know is that we're going to have to have this debate. As you say, if we aren't going to be allowed to enforce the existing laws, then we're going to have to have new laws. One possible set of laws is that anyone can come and their kids can be citizens; another is that anyone can come, but their kids aren't citizens unless they go through a naturalization process and thereby show a commitment to America as an ideal. Another might be that no one can come. But we're going to have to work something out, because this thing we've got going won't work.
I also think -- in terms of the debate as a whole -- that we have a mistaken tendency as a culture to see this debate as wrapped up in race. Race is really severable from the issue. The culture I grew up in was destroyed by intra-national immigration between the north and Atlanta, which grew until it wiped out the existing culture in the rural Georgia mountains. Property values rose until property taxes required the residents to sell out and move; family businesses, family farms, churches where great-great-grandparents were buried, all had to be abandoned. But there was no 'racial' difference: it was white Americans driving out white Americans.
Culture is really at the back of all these discussions about immigration, citizenship, and even gentrification in the cities. It's about the deep human need to belong to a community, and despair at seeing the community broken up or lost in one's lifetime. It's only accidental that this group of migrants happens to differ according to the 'racial' ideas of the day. The essential thing is watching your institutions and meaningful ties destroyed by migration.
If we had a better answer to that problem, we wouldn't be so worried about the other problems.
...the right of the people to keep and bear Arms, shall not be infringed.
Even as we argue the meaning of "keep" and "bear" and "keep and bear," we've applied restrictions to the conditions of how we can keep and bear, and the Supreme Court has approved some of those and disapproved others.
So it is with "jurisdiction." We can apply restrictions to how being subject to the jurisdiction thereof can be satisfied, some of which will be approved and some of which will be disapproved.
The arms right will continue to be debated, even court rulings adjusted, upheld, or rescinded; so it will be on the matter of the 14th's jurisdiction.
Even merely having the debate over birthright citizenship will be valuable, and it's a debate we should have every couple of generations.
Eric Hines
About the only hope I see for this drive is the argument "subject to the jurisdiction thereof" would exclude illegal immigrants because they flouted US jurisdiction by crossing into the country illegally. I don't know if that will fly, but it's really the only way I can see the argument being made successfully.
Related to that, I don't see--other than Hawaii and east Coast judges--the present "caravan's" plea for asylum or for jobs at our border can fly since the caravan have explicitly rejected Mexico's explicit offer of asylum and of work permits. Those folks plainly are not interested in asylum or jobs.
Related to that is one person asked by a Fox News reporter what it would take for Mexico sweeten its asylum/work offer to get him to stay in Mexico: that person said sweetening was impossible; he was coming to the US. Another person said he would stay in Mexico for a year or two to make enough money to pay the coyote, and then he would enter our nation illegally. These two folks plainly do not speak for anyone else, but their claims strike me as typical.
Eric Hines
On the other, it's barking mad to let people crash the border, have babies here, and then use the babies' citizenship as an anchor.
Yes, but - unless I've missed something - nothing in the Constitution guarantees that people who are/become citizens have a right to import their relatives. Even if we can't/don't want to get rid of birthright citizenship by EO or legislation, we should be able to repeal/replace whatever legislation provides for family re-unification. Then illegal aliens can have babies here and those babies can be citizens but the rest of their family doesn't get to come/stay.
Well, the EO could well be what gets the issue into the courts, couldn't it? And maybe that's the plan.
I think it's a pretty safe assumption that Trump could predict that the EO would be challenged in the courts. Maybe putting Kavanaugh and all those Federalist Society judges on the bench made Trump more confident.
If the parents are deported, along with any anchor baby, the baby is then subject to the jurisdiction of the country the parents are deported to. You might allow the child, once grown to adulthood, to move to the US. The parents remain lawbreakers and so undesirables.
No, indeed, most of our crazier immigration policy isn't mandated by the Constitution. It's a mishmash of laws that lack enough support to ensure that they'll be enforced as written, but for which there also is not enough support for various alternatives that could be enacted into law. It's a mess.
One big change I'd like to see is to disqualify anyone from seeking amnesty if he has crossed the border illegally. There's too much gamesmanship in crossing the border illegally in numbers too great to be processed by the courts or the detention facilities we're prepared to build, finance, and enforce. It means the limits on our grounds for letting people stay are almost entirely imaginary.
Two separate issues: the policy issue, and the legal/constitutional issues as to what is required to change the current policy.
Regarding the first, it would be useful if someone would generate a list of major countries and what *their* policies on citizenship are. Can I enter France illegally and then become a Citoyan? Can a person from, say, Sudan do so?
France abandoned birthright citizenship in the 1990s, actually. Ireland, Australia, and New Zealand have done so since 2000.
In the case of France...I wonder what is the path for illegal immigrants, of which they seem to have a lot...non-citizenship forever? Also, I wonder whether there are any financial advantages, in terms of benefit programs, in becoming a citizen vs staying a non-citizen.
I don’t know that much about France as it exists today; I’m stronger on how it was a thousand years ago. :)
If you wanted to look into it and report back, though, I’m sure we’d all be interested.
The Goldwater Principle suggests we need to consider any current problem in light of previous, similar, situations.
When Americans went to the Mexican territory of Texas, (typically walking over a border to do so) did they become Mexicans? Well, no.
When Americans went to the British territory of Oregon, (again, typically walking into that territory to do so) did they become British? Well, no.
When Americans walked into territories reserved for Cherokee and other First Nations tribes, some "Sooner" and some later, did they become Indian? (Elizabeth Warren, notwithstanding.) Well, no.
We see, instead, from our own history, that in influx of pedestrians into the territories claimed and managed by other nations can be lost to the pedestrians who arrive and stay there. Americans who walking across North American for a better life remained citizens of the Americans. It was the territory which changed.
If thousands of Spanish speaking pedestrians cross into the territory they have named Aztlan with a goal of making Reconquista a reality, to buy property, a little at a time; to take over neighborhoods and shops and orchards and ranches; labor unions and schools and churches ... slowly and steadily and (mostly) peacefully, is that different from what English speaking pedestrians have already done?
If English speaking citizens intend to hold property in Aztlan much longer, they must be prepared to compete with the pedestrians.
Perhaps I misunderstand, nut I think I have issue with McCarthy here:
"Congress’s codification of the 14th Amendment — which it did not need to do — is a strong expression of Congress’s intent to exercise its constitutional authority to set the terms of citizenship."
I suppose it's a sign of intent, but it clarifies exactly zero, or perhaps could be said to reinforce the original intent as it repeats it. That said, Congress may have the constitutional authority to set the terms of citizenship, but the executive has the constitutional authority to interpret and execute said law in equal force to Congress' authority. This of course leads to the third branch, as intended- by both the framers, and probably Mr. Trump.
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