It seems like just another \u201cTrump Promise\u201d, somewhere between Mexico paying for a wall and putting Hillary in jail.\u00a0\u00a0It\u2019s all wrapped up in his first and most successful political gambit. He called\u00a0migrants criminals, or insane (looking for asylum like Hannibal Lector) illegally crossing the border into the US.\u00a0\u00a0That\u2019s what got him elected to the Presidency, twice.\u00a0\u00a0So much for the old saying, “Fool me once, shame on you, fool me twice, shame on me\u201d.\u00a0\u00a0<\/p>\n\n\n\n
Yesterday Trump did an interview with NBC\u2019s Kristin Welker (notable for Welker\u2019s lack of pushback on Trump\u2019s \u201calternate facts\u201d). The President-elect stated that he would \u201cget rid of birthright citizenship\u201d.\u00a0\u00a0It was as if he could just write an executive order, without Congressional or National consent, to change the United States Constitution.\u00a0\u00a0But here we are, in the \u201cnew age of Trump\u201d.<\/p>\n\n\n\n
The right of someone born in the United States to be a citizen is plain, \u201cBlack Letter Law\u201d.\u00a0\u00a0The Fourteenth Amendment makes it clear in the very first sentence.\u00a0\u00a0<\/p>\n\n\n\n
\u201cAll 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.<\/em>\u201d<\/p>\n\n\n\n That seems straight forward.\u00a0\u00a0All Persons born in the United States.\u00a0\u00a0It doesn\u2019t suggest\u00a0\u00a0some exception about their parents\u2019 citizenship status.\u00a0\u00a0And that\u2019s absolutely intentional.\u00a0\u00a0The Fourteenth\u00a0Amendment was written as part of the Reconstruction Era after the Civil War.\u00a0\u00a0There were a large number of Americans, born in the United States, whose parents weren\u2019t considered citizens. That’s because they were enslaved.\u00a0\u00a0The Fourteenth specifically defined the citizenship of those former \u201cnon-citizens\u201d. They were citizens of both the Nation, and the State where they reside.\u00a0\u00a0<\/p>\n\n\n\n Their citizenship was a result of where they were born.\u00a0\u00a0In recent times that section has been dubbed \u201cbirthright citizenship\u201d, and been derided as some \u201cillegal migrant trick\u201d.\u00a0\u00a0If 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\u00a0Amendment.\u00a0\u00a0The \u201ctrick\u201d is that now the couple has a member of the family who is a citizen. (Detractors use the term \u201canchor baby\u201d).\u00a0\u00a0Someday, that \u201canchor\u201d could use his status to stay in the US, regardless of what happens to the parents.<\/p>\n\n\n\n So how do far-right scholars see a loophole in the Fourteenth’s Black Letter language?\u00a0\u00a0\u00a0They hang their argument on the \u201csubject to jurisdiction\u201d phrase.\u00a0\u00a0If the migrants are here without permission, then are somehow avoiding the jurisdiction of the Nation and State. Therefore they are not covered under the \u201call persons\u201d definition.\u00a0<\/p>\n\n\n\n \u00a0It\u2019s a specious statement.\u00a0\u00a0If those migrants steal bread at the store the State will step in and take jurisdiction in the criminal courts.\u00a0\u00a0So those flawed scholars see lack of jurisdiction only when it serves their purpose.\u00a0\u00a0Of course the laws will be enforced on all, migrant, legal or illegal, and citizens alike.<\/p>\n\n\n\n But it is the \u201cNew Age of Trump\u201d. The United States Supreme Court, just last year, found a whole new perk of the Presidency; one that didn\u2019t 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 \u201cofficial actions\u201d 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. <\/p>\n\n\n\n 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\u2019ll take his cue from Andrew Jackson and the Trail of Tears, when he said of the Supreme Court, \u201cJohn Marshall (the Chief Justice) has made his decision, let him enforce it\u201d.\u00a0\u00a0<\/p>\n\n\n\n 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\u00a0means.\u00a0\u00a0But since the President now has this \u201cofficial immunity\u201d, he might decide to ignore court orders and simply proceed.<\/p>\n\n\n\n Or, a Court that could create blanket Presidential immunity, is certainly capable of ignoring the history and the clear meaning of the Amendment.\u00a0\u00a0They could re-interpret the Fourteenth\u00a0as only applying to those that were enslaved, regardless of what the Amendment actually says.\u00a0\u00a0Perhaps they\u2019ll argue that since, at the time, it\u00a0didn\u2019t apply to Native Americans (they were considered outside the jurisdiction, as separate nations to be negotiated with and defeated by armed force) that same \u201cprecedent\u201d applies to illegal migrants.\u00a0\u00a0<\/p>\n\n\n\n It doesn\u2019t. 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. <\/p>\n","protected":false},"excerpt":{"rendered":"Looking for a Loophole<\/h3>\n\n\n\n
Immune<\/h3>\n\n\n\n
New Age of Trump<\/h3>\n\n\n\n