EO’s And Dred Scott And Nothing Is Ever Over

 That point in the hearing when your inner lawyer says “Fuck it, sit down.”

[Federal District Judge] Coughenour, speaking to a standing-room-only courtroom in downtown Seattle, interrupted before Brett Shumate, a Justice Department attorney, could even complete his first sentence. 

“In your opinion is this executive order constitutional?” he asked. 

Said Shumate, “It absolutely is.” 

“Frankly, I have difficulty understanding how a member of the Bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”

It’s also the point when you know, as the attorney seeking the TRO, that today the law did its job for you. Especially when the court sums up this way:

“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order,” Coughenour, an appointee of Ronald Reagan, said from the bench. “There are other times in world history where we look back and people of goodwill can say where were the judges, where were the lawyers?”

Yeah, he’s getting a bit grandiose there, but it still clear this EO won’t soon win in court.

My archives tell me Trump has been wanting to do this since his last term. That’s August, 2019. 

Today USCIS issued guidance that DHS "no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as 'residing in the United States' for purposes of acquiring citizenship” --https://t.co/IRNR21Qm4P

— Tal Kopan (@TalKopan) August 28, 2019

Also August, 2019. 

Children born to U.S. service members and government employees overseas will no longer be automatically considered citizens of the United States, according to policy alert issued by U.S. Citizenship and Immigration Services (USCIS) on Wednesday. 

Previously, children born to U.S. citizen parents were considered to be "residing in the United States," and therefore would be automatically given citizenship under Immigration and Nationality Act 320. Now, children born to U.S. service members and government employees, such as those born in U.S. military hospitals or diplomatic facilities, will not be considered as residing in the U.S., changing the way that they potentially receive citizenship.

A policy change made by Stephen “Lucifer” Miller Trump in order to establish a bridgehead against birthright citizenship? Or just to be a complete shit? 💩 Same difference.

He’s been after this awhile, IOW.

Of course, he promised to do this on the campaign trail. I don’t think that’s why he won, BTW. That link is where I discussed the difference between jus soli (birthright citizenship) and jus sanguinus (citizenship by ancestry). I won’t do that again, except to note the latter was basically the government’s position in Seattle.

Trump’s executive order says the government would not issue documents such as passports to children if their parents are not citizens or permanent residents and if their mother was in the country illegally, or even if she was here legally but only temporarily. 

The order, Brown said in court filings, would deprive around 150,000 babies a year nationally, 4,000 in Washington, of citizenship. 

“Births cannot be paused while the court considers this state’s case. Babies down the street at Harborview are likely being born today while a cloud hangs over their citizenship status,” Lane Polozola, an assistant attorney general in Brown’s office, told Coughenour Thursday morning. “They will be deprived of their right to participate fully in our democratic system.”

Yes, that's the opposition argument, but with a prelude to the Administration’s argument:

The executive order argues that the 14th Amendment “has always” excluded people whose parents are in the country illegally, because they are not “subject to the jurisdiction” of the United States. 

The Trump administration, in legal filings, argued that the states did not have standing to sue, because they are not the ones that would lose citizenship. They accused Brown of “overheated rhetoric” and argued that the 14th Amendment has never guaranteed citizenship. 

“Birth in the United States does not by itself entitle a person to citizenship,” Justice Department lawyers wrote. “Ample historical evidence shows that the children of non-resident aliens are subject to foreign powers — and, thus, are not subject to the jurisdiction of the United States and are not constitutionally entitled to birthright citizenship.”

This is the “allegiance” argument, an argument that has no basis in American law.* The argument is a child owes allegiance to the country of their parent’s birth (jus sanguinus). It’s not a metaphysical proposition; the argument is the child will have divided loyalties because their parents are not citizens, so the children won’t be loyal citizens.

Foreigners, amirite?

This argument has (unsurprisingly), been examined before.

Facts of the case 

The Chinese Exclusion Acts denied citizenship to Chinese immigrants. Moreover, by treaty no Chinese subject in the United States could become a naturalized citizen. Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens who resided in the United States at the time. At age 21, he returned to China to visit his parents who had previously resided in the United States for 20 years. When he returned to the United States, Wong was denied entry on the ground that he was not a citizen.

Question 

Is a child who was born in the United States to Chinese-citizen parents who are lawful permanent residents of the United States a U.S. citizen under the Citizenship Clause of the Fourteenth Amendment? 

Conclusion 

Because Wong was born in the United States and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the Citizenship Clause of the Fourteenth Amendment automatically makes him a U.S. citizen. Justice Horace Gray authored the opinion on behalf of a 6-2 majority, in which the Court established the parameters of the concept known as jus soli—the citizenship of children born in the United States to non-citizens. Justice Joseph McKenna took no part in the consideration or decision of the case.

There is an EO here, which is far weaker than a statute. This time the states are plaintiffs (more on that below), which is not quite as compelling as an individual’s situation might be. But the result will be the same because the legal issues are still the same. Interestingly, the plaintiffs’ attorney accused the government of trying “to impose a modern version of Dred Scott” (separate but not-equal citizenship). Ironically, a portion of the analysis in Wong relies on the Dred Scott opinion (yes, the 14th was passed in part to overturn Dred Scott. Ironies abound.):

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said: "The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."

The point is, the Constitution established jus soli before the 14th amendment made it explicit. And the facts of Wong are so close to the situations of the mothers giving birth in the plaintiff states’ example, it’s clear they had Wong in mind when they mentioned those mothers. Especially, as they argued, clearly the parents, even if they aren’t citizens or legal immigrants, are “subject to the jurisdiction thereof” (the qualifying language of the amendment). As the plaintiffs pointed out:

The children of undocumented immigrants pay taxes, register for the selective service and can be sued, arrested and charged with crimes. 

“They must comply with U.S. law; so too must their parents,” Brown wrote. 

The only people born in the U.S. who are not subject to the jurisdiction of the country, Brown wrote, are children of diplomats and children born to foreign armies at war against the U.S. on U.S. soil.

Which is the classic reading of the Amendment, again consistent with long standing (as in centuries long) precedent in the law of jus soli. And the one Wong rests on. (In law, we call that solid ground.) Which also brings me, finally, to the question of standing (i.e., the right to sue). The government argued that the states effectively didn’t have a dog in this fight (that was always their best argument: a procedural/jurisdictional one). The court expressly found in its order that the states stood to lose federal funds apportioned on the basis of citizens residing in the states, and that gave them standing.

If the government wins any argument on appeal, it will be that one. And it won’t be that one.

*I will amend my argument to point out the government relied on Elk v Wilkins, a Supreme Court opinion that predates Wong by ten years. Elk was a Native American who tried to claim citizenship under the 14th amendment. The claim was denied in part because Native American tribes had a unique status (I can’t comment on that state of the law today), making them sovereign in ways the states aren’t, but fully located in the United States. Because of this, the Court held Elk had allegiance to his tribe (where he had lived, on the reservation, until he left and applied for recognition as a citizen). But the Court also held the 14th didn’t apply because Native American tribes were not “subject to the jurisdiction” of the U.S. Which really undercuts the government’s reliance on the allegiance factor in Elk (which is based on the peculiar legal stature of Native American tribes, anyway).

If that’s the best they got, they got nothin’.

(I know people say:  “What about the immunity decision?” But Roberts thought he was protecting the institution of the Presidency.  What institution is protected by overruling Wong and rewriting two centuries of Constitutional law? I mean, not that Thomas wouldn’t do it… But how does Roberts overrule all that precedent and then tell the lower courts: “Here. You make sense of what we just did, and in several years we’ll get back to you on what we think of your efforts. In the meantime, citizenship is a free-for-all! WHEEEEE!”

At that point we have to start ignoring the Court, simply as a matter of national preservation.)