Shame on Us
It seems like just another “Trump Promise”, somewhere between Mexico paying for a wall and putting Hillary in jail. It’s all wrapped up in his first and most successful political gambit. He called migrants criminals, or insane (looking for asylum like Hannibal Lector) illegally crossing the border into the US. That’s what got him elected to the Presidency, twice. So much for the old saying, “Fool me once, shame on you, fool me twice, shame on me”.
Yesterday Trump did an interview with NBC’s Kristin Welker (notable for Welker’s lack of pushback on Trump’s “alternate facts”). The President-elect stated that he would “get rid of birthright citizenship”. It was as if he could just write an executive order, without Congressional or National consent, to change the United States Constitution. But here we are, in the “new age of Trump”.
Black Letter Law
The right of someone born in the United States to be a citizen is plain, “Black Letter Law”. The Fourteenth Amendment makes it clear in the very first sentence.
“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.”
That seems straight forward. All Persons born in the United States. It doesn’t suggest some exception about their parents’ citizenship status. And that’s absolutely intentional. The Fourteenth Amendment was written as part of the Reconstruction Era after the Civil War. There were a large number of Americans, born in the United States, whose parents weren’t considered citizens. That’s because they were enslaved. The Fourteenth specifically defined the citizenship of those former “non-citizens”. They were citizens of both the Nation, and the State where they reside.
Their citizenship was a result of where they were born. In recent times that section has been dubbed “birthright citizenship”, and been derided as some “illegal migrant trick”. If a couple come to the United States by crossing the border without permission (a misdemeanor offense), and has a child here in the US, that child is a citizen under the Fourteenth Amendment. The “trick” is that now the couple has a member of the family who is a citizen. (Detractors use the term “anchor baby”). Someday, that “anchor” could use his status to stay in the US, regardless of what happens to the parents.
Looking for a Loophole
So how do far-right scholars see a loophole in the Fourteenth’s Black Letter language? They hang their argument on the “subject to jurisdiction” phrase. If the migrants are here without permission, then are somehow avoiding the jurisdiction of the Nation and State. Therefore they are not covered under the “all persons” definition.
It’s a specious statement. If those migrants steal bread at the store the State will step in and take jurisdiction in the criminal courts. So those flawed scholars see lack of jurisdiction only when it serves their purpose. Of course the laws will be enforced on all, migrant, legal or illegal, and citizens alike.
Immune
But it is the “New Age of Trump”. The United States Supreme Court, just last year, found a whole new perk of the Presidency; one that didn’t exist in the two hundred and thirty-four years of the Constitution before. The Trump dominated Court provided the President of the United States with far ranging criminal immunity for “official actions” in office. What seemed clear only two years ago, that Presidents could ultimately still be held responsible for their illegal actions, is largely no longer true.
So perhaps, on taking office, Trump goes ahead and violates the existing Constitution by an Executive Order removing American citizenship from folks he wants to deport. He’ll take his cue from Andrew Jackson and the Trail of Tears, when he said of the Supreme Court, “John Marshall (the Chief Justice) has made his decision, let him enforce it”.
Of course many, including the American Civil Liberties Union, will go to Court, and we will begin a years-long battle to determine what the clear language of the Fourteenth means. But since the President now has this “official immunity”, he might decide to ignore court orders and simply proceed.
New Age of Trump
Or, a Court that could create blanket Presidential immunity, is certainly capable of ignoring the history and the clear meaning of the Amendment. They could re-interpret the Fourteenth as only applying to those that were enslaved, regardless of what the Amendment actually says. Perhaps they’ll argue that since, at the time, it didn’t apply to Native Americans (they were considered outside the jurisdiction, as separate nations to be negotiated with and defeated by armed force) that same “precedent” applies to illegal migrants.
It doesn’t. Migrants, legal or illegal, are clearly under the jurisdiction. But there are five or six minds on the Court that could warp their way around it. Anything is possible in our New Age of Trump.
