It happened last week, which now seems months ago, but one of the most outrageous unconstitutional things Trump has attempted is to repeal by Executive Order birthright citizenship which is enshrining in the 14th Amendment to the Constitution.
You may recall that Joe Biden on his way out the door tried to add the Equal Rights Amendment to the Constitution by executive order. Conservatives were rightly outraged and that attempt to trample the Constitution was widely denounced. When it comes to respect for the Constitution, Trump and his supporters are not better than Democrats. On the Constitution and other issues, to many Trump supporters the outcome is all that matters, not how you achieve it. To me the constitution is close to sacred. The process of how we do things is as important as the things we do. As an example, whether it is building a border or paying off student loans, no president should be able to take money appropriated by Congress for one purpose and use it for another. If we abandon the Constitution, then our stable democracy will be doomed.
On birthright citizenship, many Trump supporters are joyful that he is trying to end it by executive order. I am kind of ambivalent on the issue of whether or not it should be ended but if it is, it should be ended the right way.
Andrew C. McCarthy writing in National Review examines the issue and concludes that it would probably take a constitutional amendment or, at a minimum, congressional legislation to end it. This is kind of a lengthy article and explores some of the nuances of the issue. I urge readers to read the full article at this link. I am posting some excerpts and summarizing some of it below. McCarthy writes:
.... Trump is unilaterally decreeing an end to birthright citizenship — only to have a Reagan-appointed judge in Washington, the Honorable John Coughenour, observe: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
That is a pretty strong statement. It appeared to me as a "blatantly unconstitutional order" also but I'm not a credentialed Constitutional scholar. However, it seems that anyone with a little understanding of the Constitution would see it the same way Judge Coughenor sees it. Andrew McCarthy ask, is Judge Coughenour right? He says:
Probably, at least insofar as President Trump has tried unilaterally, by executive order, to change a provision of the Constitution that many solid scholars believe would require a constitutional amendment.
"That said, it’s complicated," says McCarthy and then sites some other articles on the issue and discusses what viewpoints others have taken and how he has come to be more convinced than ever that birthright citizenship cannot simply be ended by executive order. Executive orders, he says, "are for organizing the executive branch and exercising authority delegated to the executive branch by Congress; EOs can legitimately neither create new legal rights nor constrict existing legal rights." "The president executes the laws; he doesn’t make them," he says.
McCarthy goes on to say that he is not pleased by his conclusion, that as a matter of policy he does not think people without legal residency status should automatically be citizens but concludes that is the current law, and the President does not have authority to just change it. "I would not approve of citizenship for the children of tourists or other aliens legally present on temporary visas," he says.
One of the arguments that supporters of Trump's Executive Order banning birthright citizenship make is that the 14th Amendment’s references a person who is born in the United States “and subject to the jurisdiction thereof.” Opponents of Birthright citizenship claim that illegal immigrants are not "subject to the jurisdiction thereof." Here is what McCarthy says about that:
I see no contradiction in the happenstance that one can simultaneously be (a) subject to the jurisdiction of a foreign nation by virtue of his or her parents’ citizenship in that nation and (b) subject to the jurisdiction of the United States — in the sense of being required to obey our laws and benefiting from various legal protections — by virtue of his or her physical presence in the United States.
He expounds on this concept of "subject to the jurisdiction thereof," for several paragraphs exploring what that term has meant historically.
Another argument that proponents of ending Birthright citizenship make is that in the original 1898 Supreme Court case of United States v. Wong Kim Ark, that the Court was dealing with a legal resident, not an illegal resident and therefore the ruling should not be extended to the parents of illegal aliens. McCarthy explores this. First of all, in 1898 there was not as much distinction between legal and illegal residents as there is now and anyway it is irrelevant. He explores the arguments as to why it is irrelevant. Here is an excerpt:
First, under the common law principles that the Court addressed, birthright citizenship was established for the children of foreigners born on American soil, subject to just two exceptions: (1) children of foreign diplomats, who were deemed to retain and thus confer on their children allegiance to their sovereign, and (2) children of alien enemies born during those enemies’ hostile occupation of the king’s dominions. ...
Much as I would like to analogize children born of illegal aliens to category 2, on the theory that their presence in our country in violation of our laws is a hostile act, I can’t in good conscience do that. Simply stated, there are salient differences between a hostile occupation by an alien enemy force and an illegal trespass by aliens who should not be here but are not contesting American sovereignty.
In conclusion, McCarthys says:
... it would probably take a constitutional amendment to end birthright citizenship. At a minimum, it would take congressional legislation and, when that action was inevitably challenged, a Supreme Court willing to reverse (or at least significantly revise) Wong Kim Ark. I do not believe a majority of the justices on the current Court would do that. In any event, birthright citizenship will not be repealed by President Trump’s executive order.
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