In this midterms-themed post yesterday, I briefly touched on the suddenly-hot issue of birthright citizenship for the children of illegal immigrants. Thanks to President Trump telling Axios that he's planning to change the effective US policy via executive order, the question has been unexpectedly thrust back into the spotlight. Here's what the president said, in case you missed it:
"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. It’s ridiculous. It’s ridiculous. And it has to end.”
As I opined in my previous piece, there's virtually no chance that a controversy like this will be debated rationally, or resolved satisfactorily, prior to the election. And given Congress' acute aversion to accomplishing much of anything on immigration, I'd be rather surprised if it's tackled at at all, let alone any time soon -- especially in a divided government. One piece of this that seems relatively clear is that any effort by the president to change the de facto current policy of the United States on birthright citizenship for the children of illegal immigrants through executive fiat would be instantly challenged in court. There's a good chance Trump would lose, and even many people who are at least skeptical of the idea that the constitution grants automatic citizenship to the offspring of illegal immigrant families -- myself included -- would flag the president's approach as executive overreach.
I'm willing to listen to informed arguments about whether (a) blanket birthright citizenship is a good or bad idea, and (b) whether reversing the status quo would require a constitutional amendment, or a mere act of Congress. But attempting to do so with an Obama-style, unilateral executive decree would be unwise and likely illegitimate. That said, those who argue that this is an open-and-shut constitutional case aren't telling the whole story. In a useful column, Ben Shapiro summarizes the legal issues at play, including the fact that the US and Canada are the only advanced nations in the world that currently confer citizenship upon virtually anyone who is born on their soil. What does the law say?
At issue is the interpretation of the 14th Amendment, which provides: "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." The key phrase here is “subject to the jurisdiction thereof.” As Ilya Shapiro of CATO Institute points out, that phrase was originally written to exclude the children of Native American tribes from American citizenship – since those children were subject to the jurisdiction of Native American governance – as well as the children of foreign diplomats and soldiers from abroad fighting on American land. The amendment was specifically written in order to guarantee the citizenship of freed slaves and their children, in order to abrogate the Supreme Court’s despicable Dred Scott ruling...The Court has never fully decided on whether the 14th Amendment protects the children of illegal immigrants – people who are clearly subject to the jurisdiction of foreign countries. Illegal immigrants have a right under the Vienna Convention to consular contact if they arrested for a crime, for example. It seems highly unlikely that the framers of the 14th Amendment meant to include the children of illegal immigrants. But the Supreme Court has also been warmer toward birthright citizenship to children of illegal immigrants than the text would warrant.
Two more points on this: The Court has ruled that the children of legal immigrants born in the United States are citizens. It has also been somewhat positively disposed toward applying the same standard to illegal immigrants, but has never done so directly or explicitly. Interestingly, in explaining the meaning of a pivotal phrase in the 14 amendment, one of its drafters (Sen. Jacob Howard, a Michigan Republican) offered this analysis:
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.
Does this mean that only the children of foreign diplomats are excluded, or 'aliens' more broadly? The plain reading seems to suggest the former, but I'm not sure that's clear cut. As a matter of pure policy and national interest, Sen. Lindsey Graham says he'll introduce legislation to end the "absurd" practice of bestowing American citizenship upon babies born of illegal immigrant parents. Is it absurd? What about 'insane'? Once upon a time, that was how former Senate Democratic leader Harry Reid described it in a 1993 floor speech:
"No sane country" would incentivize unlawful immigration by guaranteeing citizenship and benefits for children born on US soil, no matter how their parents arrived, he said. Of course, he changed his tune years later, just as he also completely shifted his stance on abortion; he even once claimed that paying taxes is voluntary, or something, so it's not as though the man was ever a paragon of consistency. More than anything, this clip shows just how far the Democratic Party has traveled on the issue of illegal immigration generally. Hell, just watch this. They've become so extreme, in fact, that even passionately anti-Trump centrists like David Frum worry that Democrats' identity-fueled radicalism will drive voters into the arms of right-wing populists pledging to enforce the law.