Brown People! Living Next Door to You!

The shrinking caravan of refugees isn't a threat to the country or the constitutional order. A president who tries to end birthright citizenship by executive order is.

— Bill Kristol (@BillKristol) October 30, 2018

"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."

Donald Trump, konstitooshinal skollar

First, let's be clear:  this is red meat to Trump's base, but it is also the wet dream of a handful of "thinkers" (I use the term loosely) who want to institutionalize their racism and xenophobia, and see Donald Trump as the vehicle for achieving that end (one of them recently left the White House; we'll meet him in a minute).  The only purpose of this expected executive order is to spark a lawsuit they hope will end up before a court that includes Gorsuch and Kavanaugh on the bench.  A court that wants to reaffirm Dred Scott.  We'll get to that, but given the toxicity of Dred Scott, Roberts is not likely to want his name associated with its resuscitation.  But first, what would repeal of birthright citizenship do?

Repealing birthright citizenship would create a self-perpetuating class that would be excluded from social membership for generations. Working with researchers at Pennsylvania State University, the Migration Policy Institute (MPI) has found that ending birthright citizenship for U.S. babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7 million people by 2050. Crucially, 1 million would be the children of two parents who themselves had been born in the United States. Under a scenario denying U.S. citizenship to babies with one parent who is unauthorized, our analysis finds that the unauthorized population would balloon to 24 million in 2050 from the 11 million today.

So, if we overturn the common law concept of jus soli (I'll explain in a minute; you'll need to know these details) and replace it with jus sanguinis, which is to say we should be more like Rome than our republican form of government has already made us (again, terms to be explained later), we would have a permanent class of non-citizens, and what do we do with them?  Are they never "subject to the jurisdiction of the United States"?  That would make them, in the original use of the term, outlaw.  Far from simply barring "sanctuary cities," this would create a class completely unprotected by the law.  That was the original use of the term and it did not allow for any romantic notions of virtuous rebels upholding the cause of the downtrodden.  And that, of course, leads to larger problems, like ripples on a pond after you throw the stone in it (or, more accurately, the broken shards of glass after you throw the same stone through a window.  Remember the "broken windows" argument that supposedly led then Mayor Giuliani to clean up New York City?  Well, this would smash every window in America, and rejoice at the damage.)

More crucially, the idea that the U.S.-born children, grandchildren, great-grandchildren, etc. of people born in the United States would themselves inherit their forefathers’ lack of legal status would have deep implications for social cohesion and the strength of the democracy itself. This perpetuation of hereditary disadvantage based on the legal status of one’s ancestors would be unprecedented in U.S. immigration law. It also would be contrary to the American sense of fair play that has rejected visiting the sins of the parents on the children, thereby perpetuating the kind of hereditary disadvantage as practiced in many countries in Europe.

So, there's that.  The President says birthright citizenship is "ridiculous."  As Bill Kristol says, it's not the immigrants who are dangerous to this country.

Now: can Trump do this?  Even Steve Inskeep, not the first person I go to for insight, understood the problem.  He told Scott Horsley that Trump's announcement sounded like someone saying you can cross the Pacific Ocean by plane, some say you can do it by rowboat, and Trump was saying he'd do it by scooter.  To say the law is not with him is to put mildly.

The legal basis for jus soli, that is, birthright by being born on American soil (v. jus sanguinis, birthright by being born to American citizens), is one that descends to America through English common law.  Keep that in mind and let's back up a moment and look at consequences of ending birthright citizenship again:

A report by an organization called the National Foundation for American Policy (NFAP) in 2012 asserted that revoking birthright citizenship would be bureaucratic, expensive, would result in a national ID card, and would not slow illegal immigration. Under current law, if a citizen parent gives birth in a foreign country, they must prove their own citizenship in order for their baby to have citizenship. The NFAP estimated this to cost $600 per baby, not including legal fees. The report alleged that if birthright citizenship were eliminated, every baby in the United States would be subject to this cost. For the four million babies born each year in the U.S., this would total $2.4 billion per year. In addition, currently the US government does not keep any record of births, instead using the records of individual states to issue passports. The report alleged that the end of birthright citizenship would leave the states unable to verify whether a new baby should be granted citizenship, requiring the federal government instead to issue birth certificates, and likely a national ID card. Finally, the report claimed that eliminating birthright citizenship would not reduce illegal immigration. The report said that immigrants come to the United States for economic reasons, and illegal immigrants cannot use a citizen child to be granted citizenship. The report also said that all proposals to end birthright citizenship, aside from a constitutional amendment, would be unconstitutional and quickly be overturned in court. 

Kind of hard to avoid that conclusion.  To establish the citizenship of my child at birth, I would have to establish the citizenship of myself and my wife, and that would require record keeping by the federal government, not the state of Texas.  A national ID card would be the obvious solution to this problem, but there is a separate one:  if Trump can decide children of "illegal immigrants" are not citizens, and make that decision retroactive (rather than merely prospective), what's to stop him from deciding anyone he considers an enemy is no longer a citizen?

Sounds ridiculous, doesn't it?  But the power the President is claiming is the power to decide who belongs here, and who doesn't.  Where does he get that power, and what's the limit on it?  As we shall see, this analysis is of a piece with the analysis of critics of birthright citizenship.  Their argument that "subject to the jurisdiction thereof" gives wiggle room to exclude certain classes from the provisions of the 14th Amendment is very open-ended.  If citizens can be declared no longer "subject to the jurisdiction thereof" (which is the basis and effect of the argument, and the act if it comes, of repealing birthright citizenship), then which citizens are safe from being declared non-citizens?  This, I would argue, is the very basis for jus soli rather than jus sanguinis; declare the parents non-citizens, it is easy to deny citizenship to the children.  That denial is near impossible if one holds to the concept of citizenship by place of birth.

Let's go a bit deeper, and explore the criticisms and history of the language of the 14th Amendment.  First, the critics, as best I can find their arguments.  Axios identifies John Eastman:

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.

I have no idea how he sets this misapplication as beginning in the '70's.  I haven't stumbled across any Supreme Court decisions on the issue that are much older than that, unless he's mistaken in the date of Plyler v. Doe, a decision that applied the 14th Amendment's equal protection clause to children of immigrant parents, holding the state of Texas could not deny access to public education to such children.  There is some hint there about how the Court would interpret the 14th Amendment which we'll return to.  I mention it now only because I can't think of any other event in the '70's or near them, that Eastman could be referring to.  As far as his argument regarding green cards, those didn't exist until 1950, and as we will see, that raises serious challenges to his argument.

Kris Kobach also opposes birthright citizenship, but his legal acumen and xenophobia have been so much on display lately the less said about him, the better.  The third proponent of some form of jus sanguinis is Peter Schuck who, like Eastman and Kobach, focuses his attention on the phrase "subject to the jurisdiction":

Schuck, Nov. 21, 2014: So what does “subject to the jurisdiction” mean? The Supreme Court long ago decided this phrase confers birthright citizenship only on those who are “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” at birth. In that case, the court denied citizenship to an Indian born on a reservation but living elsewhere, because he was subject to tribal jurisdiction even though Congress held power over his tribe. (Indians became citizens only in 1924, by statute.) Later, the court granted birthright citizenship to the U.S.-born child of Chinese parents because her parents were here legally.

Schuck is right about the citizenship of Native Americans; and he's referring to the Wong Kim Ark decision in reference to the child born of Chinese parents.  The distinguishing facts between then (1898) and now is that Chinese residents in America were barred from being naturalized or even being a citizen by birth, by statute.  The Court specifically overruled that statute in holding Ark was a U.S. citizen by birth.  Schuck and others argue Ark is distinguishable because the parents were here legally.  It is a distinction without a difference in the application of the language "subject to the jurisdiction".  Ark's parents were subject to the jurisdiction of the United States, a jurisdiction which denied them the right to citizenship based on race (a pernicious category now which the Court would never use to uphold the denial of citizenship).  Undocumented immigrants are subject to the jurisdiction of the United States (it's one reason Trump can put so many of them in tent cities, and also why he can't separate children from parents).  If they are not, by Presidential declaration, then who is, except by Presidential declaration?  It's fundamentally impossible for the President to say "I can say they aren't, but I can't say you aren't."  The only possible distinction is race.  That is not a distinction even a court with Alito, Gorsuch, Kavanaugh, and Thomas could uphold.

Behind the Ark decision are a line of cases that deserve our attention, starting with Dred Scott.  It's not the majority opinion I'm interested in (the ruling was overturned by the Civil Rights Act of 1866 and the adoption of the 14th Amendment in 1868), but the legal history of citizenship under common law outlined in the dissent:

So that, under the allegations contained in this plea and admitted by the demurrer, the question is whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so, for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors.

The first section of the second article of the Constitution [p572] uses the language, "a citizen of the United States at the time of the adoption of the Constitution." One mode of approaching this question is to inquire who were citizens of the United States at the time of the adoption of the Constitution.

Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was "The United States of America." This Government was in existence when the Constitution was framed and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Constitution. When, therefore, the Constitution speaks of citizenship of the United States existing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption.

Without going into any question concerning the powers of the Confederation to govern the territory of the United States out of the limits of the States, and consequently to sustain the relation of Government and citizen in respect to the inhabitants of such territory, it may safely be said that the citizens of the several States were citizens of the United States under the Confederation.

,,,,

To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation at the time of the adoption of the Constitution.

Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New [p573] York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.

The Supreme Court of North Carolina, in the case of the State v. Manuel, 4 Dev. and Bat. 20, has declared the law of that State on this subject in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.

"According to the laws of this State," says Judge Gaston, in delivering the opinion of the court,

all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects -- those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not, in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax, and it is a matter of universal notoriety that, under it, free persons, without regard to color, claimed and exercised the franchise until it was taken from free men of color a few years since by our amended Constitution.

That traces the idea of citizenship through the colonies and the Articles of Confederation down to the Constitution.  Note that slaves, like the Chinese later in the 19th century, could not be considered citizens as a matter of law, but could become citizens (consistent with the legal reasoning in Ark) by removing this disability (as the law calls it).  Removing jus soli in favor of jus sanguinis by Presidential edict is to remove this provision of the common law and replace it with the idea the only citizens in America are those the President says are citizens.  And he can make that determination based on race, since he would be removing citizenship from citizens now, or denying it to them in the future (as well or merely by provisions of the order) based solely on race (something tells me that white Europeans who have overstayed their visas and so are "illegal" would not face a challenge to their child's citizenship birthright).  Dred Scott, as I said, was overruled by the Civil Rights Act of 1866 (which Andrew Johnson vetoed, and the Congress passed into law by overruling his veto), and, for good measure, the 14th Amendment.

So what does the 14th Amendment say?

Section 1. 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.

"Subject to the jurisdiction thereof" is almost universally regarded as referring to persons who are not foreign diplomats (not subject to U.S. jurisdiction by virtue of diplomatic immunity) and Native Americans (who are now citizens by act of Congress, so the application of the clause is very narrow, indeed).  It is this clause that some (a distinct minority) argue allows Congress to deny citizenship to person born here under the "wrong" circumstances.  But there is no support for that reasoning in the case law:

The Fourteenth Amendment provides that
[n]o State shall . . . 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.

(Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U.S. 67, 77 (1976). [n9] [p211]

Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [n10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized [p212] that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

If you parse that legalese carefully, you find the Court holding that the 14th Amendment applies to persons, not citizens, and that nothing in the Court's history supports a limitation on the phrase in question.  Plyler was an equal protection case, and here the Court extended the protection of equal protection to the same limits as due process.  Undocumented immigrants may be subject to deportation for not having entered the country with permission, but they are still entitled to due process of law and equal protection under the law.  This is why Trump can't just round them up and push them back across the border, much as he would like to.  It's also why Trump can't override the 14th Amendment with the stroke of his pen.

I keep saying the real problem with Trump's proposed executive order is that it gives the President the power to decide who is, and who is not, a U.S. citizen, a power presumably available retroactively as well as prospectively.  That is not an idle or even abstract observation.  It comes directly from the White House itself:

Michael Anton, the former spokesperson for the National Security Council known as one of the foremost intellectual proponents of Trumpism, chose birthright citizenship as his first target for public writing after leaving the White House, with a column in the Washington Post calling on the president to simply declare, by fiat, that the 14th Amendment to the Constitution did not actually guarantee citizenship for everyone born on US soil.

That column was published in July of this year.  Axios reports it has been working on the story of Trump using an executive order to end birthright citizenship for weeks.  Coincidence?  And what about that notion that citizens are only who the President says they are?

For an illustration of how difficult it is to square this circle, just see Anton’s piece — in which he claims that membership in the “social compact” on which government is based only extends to people who “all other citizen-members” agree should be included. The implication is that “all other citizen-members” believe that universal birthright citizenship threatens the polity. But because Anton doesn’t state that outright, he doesn’t have to defend it. 

How would this "compact" be determined?  National referendum?  Or executive order?  Three guesses, the first two don't count.

It isn't too much to say this is where Trump would like to be going:

“U.S. citizenship is a privilege, it is not a right,” Hilton said. “It’s something that you should have to earn. I’m working towards that. I’m hoping to start the process next year actually… And to me, that’s something that’s so precious and shouldn’t just be handed out simply by being here.”

“I think the constitutionality of it is something that lawyers will argue about,” he continued. “I’ve seen both sides make the case just today that the way the Constitution is written was not intended to cover people who are just here for a short period of time.”

According to Hilton, the Constitution “is supposed to cover citizens or lawful residents who have been here longer than that.”

“It shouldn’t be handed out lightly,” he concluded.

The residency requirement is an interesting twist, especially as it doesn't exist in the Constitution, and what length of time constitutes "residency" is apparently, again, up to the Executive.

This is an act of pernicious nonsense, if Trump carries it out.  He may think he can do this by signature; the people pushing him to do it know it will wind up in the courts.  They are clearly hoping a Kavanaugh/Gorsuch court will rule their way.  However, considering Roberts outraged Scalia (low hanging fruit, I know) in the Obamacare case, by deciding he didn't want his Court identified with Scalia's argument, I don't see how Roberts would let Gorsuch, Kavanaugh, and presumably Alito and Thomas, reissue the most damned and pernicious decision in Court history, reinterpreting the 14th Amendment and a century of case law in the process (as well as gutting the entire notion that race cannot be allowed to be a de jure determinant of status in America, even if it remains so de facto).  Will that happen?

“In my opinion, the arguments used to question the natural interpretation of the birthright citizenship rule are at best strained and at worst thoroughly dishonest,” [Garrett] Epps [, a professor at the University of Baltimore School of Law and a constitutional law expert] said. “That being said, of course, if Trump became president and appoints Judge Judy and God knows who else, the Supreme Court is perfectly capable of deciding that pi equals three, and nothing I say could stop it.”

Yeah, there's always that.