Why not have Congress fix the immigration statutes or amend the Constitution properly?
The late justice Antonin Scalia used to joke that he wished all federal judges were issued a stamp that read “Stupid, But Constitutional.”
The conversation over President Trump’s executive order on birthright citizenship and Dan McLaughlin’s Corner post on it, helpfully titled “Birthright Citizenship Is Still in the Constitution,” brings Justice Scalia’s stamp to mind.
The 14th Amendment grants citizenship automatically to “all persons born” in the territory of the United States and who are “subject to the jurisdiction” of the United States. That’s been commonly understood and interpreted for many decades by most people and by the courts, and reinforced by federal statute, to apply to all people born in America, to include the children of illegal aliens and tourists born here. Only a very small class of individuals have been excluded — i.e., those born to diplomats, or those born to members of an invading army, or, in former times, those born to members of sovereign Indian tribes.
On policy and civic grounds, I wish that the writers of the 14th Amendment would not have written their amendment quite so broadly, at least in the language relevant to this matter. The Civil War amendments, as a group, were intended to put to bed, once and for all, the issues that had directly led to that conflagration. That the former slaves were recognized as full citizens under our Constitution — in fact as well as in theory, and in letter as well as in spirit — was extremely consequential for our country, because even then, in 1868, there were many who opposed that recognition. I’m very glad that happened and that our Constitution was amended to make it completely unambiguous that black Americans ought to be recognized as full and equal citizens, sending the odious Dred Scott decision to the ash heap of history.
If the amendment were written today, however, and from scratch, it seems eminently reasonable to me that the category of persons born in the United States and “subject to the jurisdiction” of the United States, who would be granted automatic citizenship upon birth, would be limited to children born to individuals who are real and actual members of the polity: citizens, legal permanent residents, and perhaps even those granted asylum or refugee status under our laws.
It makes no sense to me at all that the child of an illegal alien, the child of a family of German tourists visiting Disneyland, the child of an Argentine college kid here on a student visa, or the child of a Canadian woman who went into labor while doing her grocery shopping across the border should be automatically an American citizen. I’m not angry at that German or that Canadian or that Argentine child, let alone her mother. I’m not even necessarily upset at the illegal alien who is trying to make a better life for her son or daughter. But was it necessary, even prudent, that our Constitution should be written so that it automatically affords equal citizenship status to those individuals, especially if the families have no intention of permanently domiciling themselves here, in America, or joining our commonwealth and society? And, of course, there is a through-the-looking-glass quality regarding the child of an illegal alien being granted full citizenship and his due part in the making of our laws and the electing of our representatives when the very place and circumstance of his birth was one rooted in the breaking of those laws.
All that said, much as I might prefer that the way that the 14th Amendment has been written and understood on this subject were otherwise, it doesn’t seem to me that there is a very great difference in the way that Donald Trump promulgated his executive order changing the way his administration would interpret our Constitution on the matter of birthright citizenship from the way that Joe Biden attempted to change our Constitution — via tweet and a jazzy infographic! — when he tried to recognize the so-called Equal Rights Amendment as the 28th Amendment.
Perhaps Andy McCarthy is right when he argues that the broad extension of birthright citizenship can be fixed via a congressional statute. Well, then shouldn’t the Republicans — who control the House, the Senate, and the White House — try to do that, and see if the courts will uphold the political branches’ duly exercised lawmaking?
If that effort is struck down by the Supreme Court, why not attempt to formally amend the Constitution the old-fashioned way? As of this moment, it doesn’t appear that public opinion is with the restrictionists like myself. But the issue hasn’t really been litigated in the court of public opinion, and perhaps Trump could leverage the power of the presidential bully pulpit and his honeymoon period to advance such an amendment. If the issue is so important, why not spend some political capital on this?
And of course, if Trump’s legacy on birthright citizenship rests solely on an executive order — even one that ends up being upheld by the courts — all it will take for that to be overturned is the first day of the next Democratic presidency. That should be understood by everyone: Executive orders are as permanent as the rug in the Oval Office (i.e., they’re going to get changed out by the next guy).
As it stands, however, I think Trump’s executive order is very likely to get swatted away by the courts. At least for now, the overly broad extension of birthright citizenship to all persons born in America is Stupid, But Constitutional. It would be nice to see Republicans in Washington try to actually address the situation in a manner that might stick.