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Birthright citizenship
Nov. 3rd, 2018 04:18 pmPresident Trump can't "end" birthright citizenship with an executive order. I'm rather shocked that some in the media have discussed this as if he could actually do it. He can't, but he might try. If he did, it would have bad consequences. That is, if we, the people, let it.
1. When people think about ending birthright citizenship, they seem to have in mind stripping citizenship from children, both of whose parents are undocumented immigrants. This would be a massive undertaking, with immense consequences. In 2016, 1.3 million children born the United States were living with parents whose immigration status was undocumented. Stripping them of their citizenship, if it could be done, would affect the lives of many millions. Yet if the citizenship of these children is questioned, then so would the citizenship of other Americans. One group would be children with one parent of undocumented status. Using the 2016 figures, this would raise the number of children affected to 4 million. And what about the children of undocumented parents who are now adults? Who knows how many parents and spouses, college and graduate students, business owners, professionals, veterans, celebrities, and even elected officials, are birthright citizens with at least one undocumented parent? Then there would be the problem of the children of adults stripped of their citizenship. If someone born in the United States is determined never to have been a citizen, are that person's children no longer citizens? What about their children? How far back do you go? Finally, some commentators have suggested that Trump's order would affect not only the children of undocumented immigrants, but the children of all foreign residents of the United States who have not declared their intention to be citizens, such as those holding visas and green cards. If that’s the case, and the children of people with only one such parent are affected, then President Obama would be stripped of his citizenship, because his father was here on a student visa. This may seem like a reductio ad adsurdum argument, but once you start to unwind birthright citizenship, where do you stop? How do you stop?
2. Do the U.S. born children of undocumented immigrants actually pose a threat to the U.S.? Those who insist they do seem to imagine them as all as criminal freeloaders, a stereotype which has been widely debunked. (They also, of course, imagine them as brown-skinned and Spanish-speaking, although there are probably at least as many children of undocumented Chinese and European immigrants as of undocumented Mexicans.) Until very recently, very few people seemed to think that granting birthright citizenship to the children of all immigrants was a problem. It has been the American norm for over a century, at least. The pejorative term "anchor baby" became popular only about a dozen years ago. The term refers to undocumented immigrants who allegedly have children in the U.S. in order to stay here. In fact, the reverse seems to be true: undocumented immigrants have children here because they have decided to stay. Even now, according to polls, most Americans think the "Dreamers," who were brought to the U.S. illegally as children, should not be deported, but should allowed a path to citizenship. I can't believe most Americans support a far more radical proposal, of stripping fellow Americans of citizenship. Most Americans, quite rightly, would reject it as contrary to American values.
3. What would Trump's executive order look like? It would have to take the form of an instruction to federal departments and agencies no longer to regard as citizens, any children of undocumented immigrants (and perhaps also, of visa and green card holders). Such an order would be, of course, a nightmare to administer. It would require federal officials, and state and local officials who follow their lead, to confirm the parentage of many millions of people, on a case-by-case basis, in order to determine the validity of everything from passports to veterans benefits to scholarships to marriage licenses to prison sentences. No doubt, the order would be executed in a discriminatory way, according to the whims and prejudices of the administrators; the children of undocumented Mexicans would probably be targeted, but probably not the children of undocumented Chinese, and certainly not the children of undocumented immigrants from Ireland or Israel. The order would, among many other things, cause massive social disruption, even chaos; cost taxpayers billions of dollars; and set up numberless conflicts between federal, state, and local governments. Not that the order would actually take effect, because as soon as it was issued, people would ask for federal court injunctions to block it, and the courts would immediately comply.
4. Courts would block the order for obvious reasons. The definition of citizenship is established by the Fourteenth Amendment: "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." Meanwhile, Article I, Section 8, Clause 4, gives Congress the power to establish "an uniform Rule of Naturalization." The Constitution nowhere gives the President unilateral authority to establish the terms of citizenship. Not even Presidents who have claimed extraordinary executive powers in wartime have claimed they could do this. When President Obama created the DACA program, all he did was temporarily alter how certain immigration laws were enforced. For this, Republicans accused him of dangerous usurpation of executive power, although no court has so far agreed. Obama never, however, came close to claiming he could grant the "Dreamers" citizenship. Only Congress can do that. Although Trump claims legal "experts" tell him he has the right to act, no court, not even a right leaning one, would uphold this position.
5. Trump would no doubt claim that all he is doing is making federal officials follow a "correct" interpretation of the Fourteenth Amendment. The claim would rest on an argument advanced in recent years by certain right-wing activists and scholars, who argue that the Fourteenth Amendment does not, in fact, grant birthright citizenship to the children of undocumented immigrants, and possibly not even to the children of legal resident aliens. Those who make this argument usually focus on the phrase in the amendment, that only persons born "subject to the jurisdiction" of the United States become citizens. Undocumented immigrants, so the argument goes, are not subject to U.S. jurisdiction, because they never legally renounced allegiance to another country. Supporters of this view argue that this was the original intent of the authors of the Fourteenth Amendment. They have dug up some statements made in the Congressional debates over the amendment, in 1868, some of which can be interpreted as saying that only the children of those "fully"; under U.S. jurisdiction, such as immigrants who have declared their intent to be U.S. citizens, would become citizens. This argument, however, is very weak and is not accepted by the large majority of historians or legal scholars.
6. a. I don't believe that constitutional interpretation stops at determining "original intent," but I do think original intent should be taken into consideration. Yet trying to determine the "original intent" of the Fourteenth Amendment from the congressional debates over it, is a very difficult exercise. The debates were complicated, and participants said a lot of contradictory things (recorded in the Congressional Globe, the predecessor to the Congressional Record).
b. Certain things, however, are pretty clear. One is that the supporters of the Fourteenth Amendment intended it to end one variety of "illegal alienship"--that of free black people. Simply freeing enslaved people had not made them citizens, because the prevailing legal tradition in the U.S. until the Civil War had been to regard non-white residents as aliens. The Dred Scott decision of the Supreme Court (1857), which held that only white people could be citizens, was an expression of this dominant tradition. Most whites in both the North and South believed blacks never would be citizens and supported the idea of colonizing or deporting all free black people back to Africa. (Abraham Lincoln himself only stopped publicly supporting colonization when he issued the Emancipation Proclamation.) Many free blacks in the antebellum era lived in a shadowy legal netherworld very much like that of "illegal aliens" today. Enslaved people who escaped their owners, for example, and lived as free people in the North, lived in constant fear of arrest and rendition under federal fugitive slave laws. Meanwhile, Virginia had laws requiring that all enslaved people manumitted by their masters had to leave the state after six months. Hundreds of thousands of manumitted black Virginians nonetheless continued to live in the state in violation of these laws, under constant threat of deportation. A number of western states, meanwhile, such as Kansas and Oregon, had provisions in their state constitutions banning black settlement. Any black settlers were living in those states did so illegally. Emancipation, coupled with the Fourteenth Amendment. eliminated this entire category of "illegal alien."
c. Although the authors of the amendment were not primarily focused on immigrants, some of them clearly recognized its impact on the children of immigrants. For example, they pointed out that the children of Chinese immigrants would become citizens.
d. When the authors added the "under the jurisdiction" exception, they had one group of people clearly in mind: the children of foreign officials residing in the United States, such as diplomats. These children would not become citizens. They were not thinking about undocumented immigrants, a category that did not yet exist.
c. In the mid-nineteenth century, the U.S. had almost open borders (for that matter, a number of states allowed non-citizens to vote). Immigration policy, such as it was, was set at the state level, because people did not think Congress had the constitutional authority to regulate immigration, which is not among its enumerated powers. (Ironically, most people today who insist we must always strictly follow the original intent of the Founders also seem to favor strict immigration laws, even though there is no clear evidence that the Founders intended Congress to have the power to enact immigration laws.) Only in 1875 did the Supreme Court rule that immigration policy was a federal matter (Chy Lung v. Freeman); only in the 1880s did Congress enact the first immigration restriction laws; only in 1891, did the federal government fully take over the administration of immigration (Ellis Island was established the following year). Unlawful entry into the country was not made a crime under federal law until 1929. Resident aliens did no have to register with the United States until 1940, when the green card was invented.
c. Owing to Trump's announcement, the important Supreme Court case of United States v. Wong Kim Ark (1898) is in the news, as it should be. The Court ruled that Wong was a citizen of the United States because he had been born in California, even though his parents were "subjects of the Emperor of China," who had never expressed interest in becoming citizens. I've heard the argument made that the precedent of this case only applies to the children of legal aliens, but I don't see how this is so. The legal status of Chinese immigrants in the late nineteenth century was constantly called into question. The first immigration law ever enacted by Congress was the Chinese Exclusion Act of 1880, and Supreme Court in Wong Kim Ark seems to have been reacting against it.
c. Yet Wong Kim Ark is not the most important precedent regarding birthright citizenship. The most important precedent is the uniform practice of the nation ever since. All children born in this country, unless their parents are foreign diplomats or agents, have for 120 years been regarded as citizens. The weight of a few words from 1868 against this overwhelming fact, is small indeed.
7. Trump may actually want his executive order is to be legally challenged, so he can appeal to the Supreme Court, and make his case before its right-leaning majority. His thinking might be that even if the Justices don't accept his argument about executive power, they could rule that the Fourteenth Amendment does not cover undocumented immigrants, or overturn the Wong Kim Ark precedent. I very much doubt, however, the Court would take so drastic a step as to strip citizenship from millions, and produce the massive legal chaos I have already described, especially if the vote were 5-4. The public blow-back would be massive. The authority of Court would be severely damaged. The Justices surely know this.
8. On the other hand, the Court might kick the question to Congress. That is, there could be a 5-4 split, in which the four liberal Justices would rule that any restriction of birthright citizenship is unconstitutional, while right-leaning majority would rule that Congress should decide. Sen. Lindsay Graham may be anticipating this; I heard that he has introduced legislation to restrict birthright citizenship. As restricting birthright citizenship is an unpopular idea, however, outside certain elements of the Republican base, and the obstacles involved in putting such a policy into effect are so large, I don't think even a Republican Congress would vote for it.
9. Yet even if the Courts overrule Trump, and Congress declines to act, Trump will have succeeded in bringing radical ideas into the political mainstream. The point would be to rally his supporters, while increasing the fear under which immigrants currently live, perhaps intimidating those who are citizens so that they do not try to vote. His action would produce more bullying of immigrant children in schools; more anti-immigrant discrimination; more anti-immigrant hate crimes. Here is where activism counts. Here is where protest, and speaking out, and acts of ally-ship, large and small, all count. Here is where voting counts. The ultimate arbiter of the meaning of the Constitution, as every serious commentator on the subject has always conceded, is not the Supreme Court, Congress, or the President, but the American people, acting in their sovereign capacity. We give the Constitution life and meaning. Ultimately, we are the protectors of the rights of immigrants and their American children.
1. When people think about ending birthright citizenship, they seem to have in mind stripping citizenship from children, both of whose parents are undocumented immigrants. This would be a massive undertaking, with immense consequences. In 2016, 1.3 million children born the United States were living with parents whose immigration status was undocumented. Stripping them of their citizenship, if it could be done, would affect the lives of many millions. Yet if the citizenship of these children is questioned, then so would the citizenship of other Americans. One group would be children with one parent of undocumented status. Using the 2016 figures, this would raise the number of children affected to 4 million. And what about the children of undocumented parents who are now adults? Who knows how many parents and spouses, college and graduate students, business owners, professionals, veterans, celebrities, and even elected officials, are birthright citizens with at least one undocumented parent? Then there would be the problem of the children of adults stripped of their citizenship. If someone born in the United States is determined never to have been a citizen, are that person's children no longer citizens? What about their children? How far back do you go? Finally, some commentators have suggested that Trump's order would affect not only the children of undocumented immigrants, but the children of all foreign residents of the United States who have not declared their intention to be citizens, such as those holding visas and green cards. If that’s the case, and the children of people with only one such parent are affected, then President Obama would be stripped of his citizenship, because his father was here on a student visa. This may seem like a reductio ad adsurdum argument, but once you start to unwind birthright citizenship, where do you stop? How do you stop?
2. Do the U.S. born children of undocumented immigrants actually pose a threat to the U.S.? Those who insist they do seem to imagine them as all as criminal freeloaders, a stereotype which has been widely debunked. (They also, of course, imagine them as brown-skinned and Spanish-speaking, although there are probably at least as many children of undocumented Chinese and European immigrants as of undocumented Mexicans.) Until very recently, very few people seemed to think that granting birthright citizenship to the children of all immigrants was a problem. It has been the American norm for over a century, at least. The pejorative term "anchor baby" became popular only about a dozen years ago. The term refers to undocumented immigrants who allegedly have children in the U.S. in order to stay here. In fact, the reverse seems to be true: undocumented immigrants have children here because they have decided to stay. Even now, according to polls, most Americans think the "Dreamers," who were brought to the U.S. illegally as children, should not be deported, but should allowed a path to citizenship. I can't believe most Americans support a far more radical proposal, of stripping fellow Americans of citizenship. Most Americans, quite rightly, would reject it as contrary to American values.
3. What would Trump's executive order look like? It would have to take the form of an instruction to federal departments and agencies no longer to regard as citizens, any children of undocumented immigrants (and perhaps also, of visa and green card holders). Such an order would be, of course, a nightmare to administer. It would require federal officials, and state and local officials who follow their lead, to confirm the parentage of many millions of people, on a case-by-case basis, in order to determine the validity of everything from passports to veterans benefits to scholarships to marriage licenses to prison sentences. No doubt, the order would be executed in a discriminatory way, according to the whims and prejudices of the administrators; the children of undocumented Mexicans would probably be targeted, but probably not the children of undocumented Chinese, and certainly not the children of undocumented immigrants from Ireland or Israel. The order would, among many other things, cause massive social disruption, even chaos; cost taxpayers billions of dollars; and set up numberless conflicts between federal, state, and local governments. Not that the order would actually take effect, because as soon as it was issued, people would ask for federal court injunctions to block it, and the courts would immediately comply.
4. Courts would block the order for obvious reasons. The definition of citizenship is established by the Fourteenth Amendment: "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." Meanwhile, Article I, Section 8, Clause 4, gives Congress the power to establish "an uniform Rule of Naturalization." The Constitution nowhere gives the President unilateral authority to establish the terms of citizenship. Not even Presidents who have claimed extraordinary executive powers in wartime have claimed they could do this. When President Obama created the DACA program, all he did was temporarily alter how certain immigration laws were enforced. For this, Republicans accused him of dangerous usurpation of executive power, although no court has so far agreed. Obama never, however, came close to claiming he could grant the "Dreamers" citizenship. Only Congress can do that. Although Trump claims legal "experts" tell him he has the right to act, no court, not even a right leaning one, would uphold this position.
5. Trump would no doubt claim that all he is doing is making federal officials follow a "correct" interpretation of the Fourteenth Amendment. The claim would rest on an argument advanced in recent years by certain right-wing activists and scholars, who argue that the Fourteenth Amendment does not, in fact, grant birthright citizenship to the children of undocumented immigrants, and possibly not even to the children of legal resident aliens. Those who make this argument usually focus on the phrase in the amendment, that only persons born "subject to the jurisdiction" of the United States become citizens. Undocumented immigrants, so the argument goes, are not subject to U.S. jurisdiction, because they never legally renounced allegiance to another country. Supporters of this view argue that this was the original intent of the authors of the Fourteenth Amendment. They have dug up some statements made in the Congressional debates over the amendment, in 1868, some of which can be interpreted as saying that only the children of those "fully"; under U.S. jurisdiction, such as immigrants who have declared their intent to be U.S. citizens, would become citizens. This argument, however, is very weak and is not accepted by the large majority of historians or legal scholars.
6. a. I don't believe that constitutional interpretation stops at determining "original intent," but I do think original intent should be taken into consideration. Yet trying to determine the "original intent" of the Fourteenth Amendment from the congressional debates over it, is a very difficult exercise. The debates were complicated, and participants said a lot of contradictory things (recorded in the Congressional Globe, the predecessor to the Congressional Record).
b. Certain things, however, are pretty clear. One is that the supporters of the Fourteenth Amendment intended it to end one variety of "illegal alienship"--that of free black people. Simply freeing enslaved people had not made them citizens, because the prevailing legal tradition in the U.S. until the Civil War had been to regard non-white residents as aliens. The Dred Scott decision of the Supreme Court (1857), which held that only white people could be citizens, was an expression of this dominant tradition. Most whites in both the North and South believed blacks never would be citizens and supported the idea of colonizing or deporting all free black people back to Africa. (Abraham Lincoln himself only stopped publicly supporting colonization when he issued the Emancipation Proclamation.) Many free blacks in the antebellum era lived in a shadowy legal netherworld very much like that of "illegal aliens" today. Enslaved people who escaped their owners, for example, and lived as free people in the North, lived in constant fear of arrest and rendition under federal fugitive slave laws. Meanwhile, Virginia had laws requiring that all enslaved people manumitted by their masters had to leave the state after six months. Hundreds of thousands of manumitted black Virginians nonetheless continued to live in the state in violation of these laws, under constant threat of deportation. A number of western states, meanwhile, such as Kansas and Oregon, had provisions in their state constitutions banning black settlement. Any black settlers were living in those states did so illegally. Emancipation, coupled with the Fourteenth Amendment. eliminated this entire category of "illegal alien."
c. Although the authors of the amendment were not primarily focused on immigrants, some of them clearly recognized its impact on the children of immigrants. For example, they pointed out that the children of Chinese immigrants would become citizens.
d. When the authors added the "under the jurisdiction" exception, they had one group of people clearly in mind: the children of foreign officials residing in the United States, such as diplomats. These children would not become citizens. They were not thinking about undocumented immigrants, a category that did not yet exist.
c. In the mid-nineteenth century, the U.S. had almost open borders (for that matter, a number of states allowed non-citizens to vote). Immigration policy, such as it was, was set at the state level, because people did not think Congress had the constitutional authority to regulate immigration, which is not among its enumerated powers. (Ironically, most people today who insist we must always strictly follow the original intent of the Founders also seem to favor strict immigration laws, even though there is no clear evidence that the Founders intended Congress to have the power to enact immigration laws.) Only in 1875 did the Supreme Court rule that immigration policy was a federal matter (Chy Lung v. Freeman); only in the 1880s did Congress enact the first immigration restriction laws; only in 1891, did the federal government fully take over the administration of immigration (Ellis Island was established the following year). Unlawful entry into the country was not made a crime under federal law until 1929. Resident aliens did no have to register with the United States until 1940, when the green card was invented.
c. Owing to Trump's announcement, the important Supreme Court case of United States v. Wong Kim Ark (1898) is in the news, as it should be. The Court ruled that Wong was a citizen of the United States because he had been born in California, even though his parents were "subjects of the Emperor of China," who had never expressed interest in becoming citizens. I've heard the argument made that the precedent of this case only applies to the children of legal aliens, but I don't see how this is so. The legal status of Chinese immigrants in the late nineteenth century was constantly called into question. The first immigration law ever enacted by Congress was the Chinese Exclusion Act of 1880, and Supreme Court in Wong Kim Ark seems to have been reacting against it.
c. Yet Wong Kim Ark is not the most important precedent regarding birthright citizenship. The most important precedent is the uniform practice of the nation ever since. All children born in this country, unless their parents are foreign diplomats or agents, have for 120 years been regarded as citizens. The weight of a few words from 1868 against this overwhelming fact, is small indeed.
7. Trump may actually want his executive order is to be legally challenged, so he can appeal to the Supreme Court, and make his case before its right-leaning majority. His thinking might be that even if the Justices don't accept his argument about executive power, they could rule that the Fourteenth Amendment does not cover undocumented immigrants, or overturn the Wong Kim Ark precedent. I very much doubt, however, the Court would take so drastic a step as to strip citizenship from millions, and produce the massive legal chaos I have already described, especially if the vote were 5-4. The public blow-back would be massive. The authority of Court would be severely damaged. The Justices surely know this.
8. On the other hand, the Court might kick the question to Congress. That is, there could be a 5-4 split, in which the four liberal Justices would rule that any restriction of birthright citizenship is unconstitutional, while right-leaning majority would rule that Congress should decide. Sen. Lindsay Graham may be anticipating this; I heard that he has introduced legislation to restrict birthright citizenship. As restricting birthright citizenship is an unpopular idea, however, outside certain elements of the Republican base, and the obstacles involved in putting such a policy into effect are so large, I don't think even a Republican Congress would vote for it.
9. Yet even if the Courts overrule Trump, and Congress declines to act, Trump will have succeeded in bringing radical ideas into the political mainstream. The point would be to rally his supporters, while increasing the fear under which immigrants currently live, perhaps intimidating those who are citizens so that they do not try to vote. His action would produce more bullying of immigrant children in schools; more anti-immigrant discrimination; more anti-immigrant hate crimes. Here is where activism counts. Here is where protest, and speaking out, and acts of ally-ship, large and small, all count. Here is where voting counts. The ultimate arbiter of the meaning of the Constitution, as every serious commentator on the subject has always conceded, is not the Supreme Court, Congress, or the President, but the American people, acting in their sovereign capacity. We give the Constitution life and meaning. Ultimately, we are the protectors of the rights of immigrants and their American children.
