The Birthright Citizenship Question Is Over...
But is it? Of course. But maybe?
The Supreme Court chose to hand down a far more definitive ruling on the birthright citizenship question than I expected, setting up a scenario where yes, it’s really going to take a Constitutional Amendment and a legal movement to achieve it to strike the Fourteenth Amendment’s framing of the issue.
As far as I can tell on my initial reading, this is, for the anti-birthright folks, a total loss. Which is one of the reasons I always thought that whole John Eastman-backed ludicrous tactic of an Executive Order was the riskiest of all the approaches, and the one likeliest to be rebuffed by the Court.
(Lots of people disagreed with me at the time, and I hope they feel stupid about it.)
Anyway, here’s how Hugh Hewitt reacted, and I think it’ll be echoed by a lot of folks in Washington, and rejected by a lot of folks outside of it. And here’s what Ilya Shapiro had to say:
“For once I agree with Justice Kavanaugh’s middle-of-the-road approach here, meaning that the Court was wrong on the constitutional question but the executive order conflicts with federal law. Justice Alito actually reinforces that understanding in his dissent when he writes, ‘The Fourteenth Amendment dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress.’ But that statutory route is now foreclosed, leaving the federal government unable to deal with the scourge of birth tourism, which was unknown and inconceivable at the time of the Fourteenth Amendment’s ratification. That’s unfortunate to say the least and—given that the constitutional issue was a close one for originalists—the Court would’ve been better off taking Kavanaugh’s off-ramp and leave the issue to the political branches.”
The inevitably aggressive political movement to overturn this is going to become a central facet of the Republican Party for the foreseeable future.
Hold on to your butts, folks.
Oh And Here’s A Thing I Wrote Back In 2018
I had heard rumors that this Executive Order was being considered, and as per usual Jonathan Swan is on it on Axios’s new HBO show.
“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.”
The president expressed surprise that “Axios on HBO” knew about his secret plan: “I didn’t think anybody knew that but me. I thought I was the only one.” …
The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:
“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.” Few immigration and constitutional scholars believe it is within the president’s power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.
Senator Lindsey Graham told ABC News he plans to introduce legislation along the same lines as the proposed executive order from President Trump. “Finally, a president willing to take on this absurd policy of birthright citizenship,” he said.
One aside: it seems clear this is not the roll-out those backing this idea intended. The President seems genuinely surprised that Swan knew about this idea being floated at the White House Counsel’s office. That is interesting.
As a legal matter, this question is in dispute thanks to a handful of legal scholars on the right who disagree with the overwhelming majority of legal scholars, politicians, and, most importantly of all, the president’s own judicial appointees on this question. (James Ho was not yet a lifetime appointee federal appeals judge when he wrote this – Trump appointed him.) An even tinier portion believe it can be done via executive action instead of via Constitutional Amendment or act of Congress. But leave the legal debate to the lawyers, and to non-lawyer Michael Anton, and just look at the practical and political questions raised by this assuming it is not simply a midterm rallying theme – akin to a mythical middle class tax cut.
Interestingly enough, ending birthright citizenship is opposed by immigrant hardliners like Mark Krikorian, because he believes it is both impractical and has longterm negative ramifications. On the legal question, Krikorian believes the birthright citizenship issue would have to be decided by the Supreme Court or a Constitutional amendment. But he wouldn’t want to change that regimen, because of the negative outcomes it would create with stateless children representing a semi-permanent underclass.
Consider the practical outcomes of this after half a decade: Ending birthright citizenship would make the United States more like the rest of the world – it would also end an incentive for immigrants to come here, which is of course the actual goal of most of the people advancing this argument. But what it will not do is provide any incentive for people already here illegally to leave. Instead they will stay, and have children anyway.
Rather than the previous agreement – where we owe these children the protections of the Constitution, and they owe their allegiance to our flag – there is no such commitment made. They will be stateless, as illegal in their presence in the United States as their parents, with no nation to call home.
In our current understanding of the 14th Amendment and birthright citizenship, the existence of a permanent underclass of native born non-citizens ends at the first generation. Their children are as American as you, and integration into American life begins in a way that discourages the creation of multigenerational non-citizen ghettos. In the absence of that understanding, say hello to a massive underclass of people and families with a greater incentive to form exactly the kind of hardened ethnic conclaves we see in Europe – and the outcomes and risks that come with such ghettos. I wonder if they will put one in Santa Monica.
Managing a permanent and significant non-citizen population is messy stuff historically and today, and Krikorian and other smart immigration policy wonks know it – that’s why border enforcement, skills based immigration, and eVerify have been their focus, not this. The short term political ramifications would serve as a serious boost to the demography as destiny crowd. The longer term political ramifications here would be obvious and severe: an inevitable and powerful push for a mass and total amnesty for these multi-generation non-citizens that would come the instant that Republicans no longer are in power.
Polls show Republican voters consistently support a citizenship solution for the Dreamers, and that this would effectively create millions more. The pressure to grant mass amnesty would be a thousand times as heavy in an environment where the semi-permanent underclass has no hope of integration for their children, and it would inevitably eventually succeed – creating a cohort of millions of voters with a loyalty to those who backed it.