Millions of people are in the country through no fault of their own. Many are brought here against their will. Many as children. They are in America but are not citizens of America. Some people want to send them back to where they came from. Others want to make them American.
Originally Published in Vox
Nicole Narea – December 10, 2020
Originally Published in Vox
Nicole Narea – December 10, 2020
Originally published by Slate
Unlike the recent suggestions of President Donald Trump, you cannot end birthright citizenship with an executive order. Or even a bill in Congress. So says the Constitution. But don’t trust this president or the next Congress to necessarily agree with the plain meaning of these words. Or future federal officials. Or even the federal courts. Because unbeknownst to most Americans, for more than a century all three branches of government have perpetuated an unconstitutional denial of birthright citizenship.
On Wednesday, the Trump administration will appear in federal court to defend the ability of the political branches to unilaterally restrict the Constitution’s guarantee of birthright citizenship. No, it will not be to defend an executive order or congressional statute denying citizenship to U.S.-born children of unauthorized immigrants. Rather, in Fitisemanu v. United States, the administration is defending the unconstitutional denial of birthright citizenship in U.S. territories before the U.S. District Court for the District of Utah. (Both authors are involved in the lawsuit.)
Many assume that the overwhelming bipartisan consensus condemning the constitutionality of Trump’s plan to restrict birthright citizenship by executive order or congressional statute makes such plans dead on arrival. Simply put, the original understanding of the Citizenship Clause requires recognizing all born on U.S. soil as citizens (the only narrow exceptions are for the children of foreign diplomats, enemy soldiers, or certain Indian tribes). An unbroken line of Supreme Court precedent agrees.
But America’s unsavory history of denying birthright citizenship in overseas U.S. territories offers a cautionary tale.
Today, the federal government labels people born in American Samoa as non-citizens, even though it has been a U.S. territory since 1900. Moreover, it holds that the citizenship of millions of Americans born in Puerto Rico and other territories is based on statute, notconstitutional right, and could be rolled back by Congress.
Legal scholars across the ideological spectrum reject this view as a racist, anachronistic, and unconstitutional exception … invented by administrators and legislators.
Yet, here we are.
The problem began in 1899, when President William McKinley oversaw annexation of Puerto Rico, Guam, and the Philippines from Spain. In step with prevailing racial attitudes, he judged the native inhabitants unfit to be American citizens. So he acted unilaterally to deny them citizenship.
McKinley’s view-like Trump’s-was clearly contrary to well-settled understandings of the Citizenship Clause. Shortly after the 14th Amendment’s ratification, the Supreme Court explained the clause put[] at rest the proposition that [t]hose who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. After all, the chairman of the Senate Judiciary Committee explainedduring congressional debates over the Citizenship Clause that it refers to persons everywhere, whether in the States or in the Territories. (All emphasis ours.)
But just as Trump is not swayed by the consensus on birthright citizenship today, McKinley’s administration was undeterred then.
Inevitably, the issue reached the Supreme Court. Its response should leave us feeling queasy.
In a 1901 case involving tariffs on oranges from Puerto Rico that had nothing to do with citizenship, key Justices nonetheless opined on the racial fitness of residents of the territories to be citizens. Justice Henry Billings Brown-the author of Plessy v. Ferguson–
rejected birthright citizenship for territorial inhabitants’ children thereafter born, whether savages or civilized. Justice Edward Douglas White expressed concern about bestowal of citizenship on those absolutely unfit to receive it.
Three years later, the Supreme Court directly faced the question of citizenship. Immigration officials had excluded a Puerto Rican woman as an undesirable alien. She contended that Puerto Ricans were citizens; the federal government argued they were not. The Supreme Court blinked, expressly dodging the question of citizenship and declaring only that Gonzales was not an alien.
Every administration since has taken this as a wink and a nod that it need not recognize people born in overseas territories as citizens. Now, more than a century after McKinley carved an unconstitutional exception to birthright citizenship, federal law continues to classify people born in overseas U.S. territories as non-citizen U.S. nationals unless Congress says otherwise.
Next week a group of passport-holding, tax-paying Americans living in Utah who are labeled non-citizens because they were born in American Samoa will have their day in court. They will ask a federal judge to reject the idea that the political branches can redefine the Citizenship Clause.
We remain optimistic the courts will ultimately recognize that the Citizenship Clause means what it says when it comes to birthright citizenship in U.S. territories.
But this history offers an important lesson.
Americans shouldn’t casually dismiss the threat of a president or Congress redefining the Citizenship Clause to exclude disfavored groups. When political imperatives and racial hostility mix together, the Supreme Court cannot always be relied on to defend the Constitution’s guarantee of birthright citizenship.
Unilateral executive action narrowed constitutional birthright citizenship once before, and we are still living with the consequences.
Read more:https://slate.com/news-and-politics/2018/11/trump-birthright-threat-american-samoa-puerto-rico.html
Originally published by The Hill
Pollster Emily Ekins said on Friday that birthright citizenship was a key reason why the U.S. has been so successful at assimilating immigrant populations.
“I think it’s core to American identity to embrace this idea of birthright citizenship,” Ekins, director of polling at the Cato Institute, told Hill.TV’s Jamal Simmons on “What America’s Thinking.”
“Many people believe that this is why America has been so tremendous at assimilating so many immigrants from different places,” she said.
Ekin’s comments come after a new American Barometer survey found that 57 percent of respondents said a child born in the U.S. to a parent with a temporary visa should be considered a U.S. citizen.
Meanwhile 28 percent of respondents did not think children born in the U.S. to parents with a temporary visa should be considered U.S. citizens.
The same poll also revealed 48 percent of voters said a child should be considered a U.S. citizen if a woman gives birth to a child while she is in the U.S. illegally. Thirty-eight percent of those surveyed said the child should not be considered a citizen in the same situation.
“I think that we’re seeing in this poll is the distinction that people make between people that are here in the country illegally, and the people who are here legally,” Ekins said.
The issue of birthright citizenship made headlines last month after President Trumpannounced he would he would sign an executive order banning the practice.
– Julia Manchester
Read more:https://thehill.com/hilltv/what-americas-thinking/415953-birthright-citizenship-could-be-reason-for-us-success-in
Originally published by The New Yorker
With his promise to revoke, by executive order, the guarantee of birthright citizenship in America, President Trump has made the inconceivable possible. Most legal scholars appear to agree that the Fourteenth Amendment cannot be changed in the way that Trump proposes, but his vow has already elevated previously marginal arguments-they are now positions to be considered. If the President follows through with an executive order, what may have seemed like legal nonsense yesterday will have to be weighed by the courts. We have seen this mainstreaming of previously unimaginable ideas many times in the last two years: a ban on Muslims entering the country, the border wall, the withdrawal from the Paris climate accords, and more.
The idea of revoking birthright citizenship is consistent with Trump’s newly vigorous embrace of the label nationalist. Most recently, at a rally in Houston and in an interview with Fox News, Trump has defined nationalist as the opposite of globalist. The Times columnist David Brooks criticized Trump’s use of the word by arguing that he loves America more than the President does; both men use the word nationalist as though it were synonymous with patriot, but this shift in usage is significant. Nationalist suggests a country under siege and carries the connotations of thinking of the United States as a nation-state that is ethnically, culturally, and religiously homogeneous. This, in turn, is consistent with the removal, in February, of the words nation of immigrants from the mission statement of United States Citizenship and Immigration Services. As with so many things, we haven’t talked nearly enough about how much these shifts in official rhetoric change the dominant political story.
When Trump said, on Axios on HBO, that the U.S. is the only country in the world where people obtain citizenship by virtue of being born, he lied. Birthright citizenship is the rule in the Americas. Many Western European countries allow people who were born there to apply for citizenship once they turn eighteen. Some countries are more restrictive. In Germany, for example, a newborn is considered a citizen only if at least one of the baby’s parents is a legal resident who has been in the country for more than eight years. This law is a source of shame for many Germans, precisely because it is rooted in ideas of a nation’s ethnic and cultural purity. These kinds of laws create an ever-growing class of disenfranchised people who live in Germany legally and can participate in the economy but not in national politics-and this is precisely Trump’s objective, too: to shut Americans whom he perceives as other out of the political system. Two years after claiming, obsessively and falsely, that millions of illegal immigrants voted in the Presidential election, Trump is taking steps to make immigrant votes illegal.
The pernicious effects of Trump’s statement do not end there. The only reasonable response to his attack on birthright citizenship is to defend it; the problem is it is indefensible. It may seem like a self-evident right, but it is based on a decidedly premodern premise. As the Northwestern University professor of political science Jacqueline Stevens has argued, in an online debate organized by The Economist, Just as it would be unacceptable for a government to announce in advance that at birth one’s options to attend Oxford, earn $1m, or run for Mayor of London will be reserved only to those able to claim ancestors with these attributes, anyone claiming to embrace liberal values should find it equally unacceptable to use birth-either in a geographical territory or to specific parents-as the decision rule for restricting residence in a country.
This may seem like a novel, even revolutionary, argument, but this is the conversation we ought to be having in the twenty-first century. Yet we are further from being able to have this conversation than we were even a week ago. This is the most dangerous and most consistent effect that Trump is having on American culture: he is bending the arc of history backward. He made many promises when he ran for President, but the promise to return to an imaginary past was his biggest. He is keeping it.
Read more:https://www.newyorker.com/news/our-columnists/trump-birthright-citizenship-and-the-mainstreaming-of-unimaginable-ideas
Originally published by The Huffington Post
As immigrants and their families continue to grapple with Donald Trump’s intent to end birthright citizenship, one Chinese-American’s 1898 case makes the prospect of such a move not so simple.
Wong Kim Ark, a restaurant cook who was born in San Francisco, was barred from reentering the U.S. after a trip to visit his parents in China. Wong was arrested, and his case eventually made it to the Supreme Court, where judges ruled that under the 14th Amendment, anyone born in the U.S. is automatically a citizen.
Though Trump claimed he could sign an executive order to revoke the current birthright citizenship policy, Wong’s case set a precedent that’s remained the law of the land for more than a century. In fact, the policy could likely only be changed through a constitutional amendment.
The bigger issue for us as a country is how do we create more pathways to citizenship, not whether we should cut it off, Aarti Kohli, executive director of Advancing Justice ― Asian Law Caucus, told HuffPost. We have a lot of people who already call America home who should have the opportunity to become citizens.
Wong’s parents had arrived in the U.S. from China during a time of fierce anti-Chinese sentiment. The era had birthed the Chinese Exclusion Act, legislation that put a 10-year moratorium on Chinese labor immigration. The act also barred courts from granting Chinese immigrants citizenship.
Wong’s parents came to the country seeking U.S. citizenship but eventually left after the act had cut off any pathway to citizenship status. They had also feared the vigilante violence that often targeted Chinese immigrants at the time. In fact, one of the largest lynchings in American history occurred in 1871. Hundreds had descended upon Los Angeles’ Chinatown, and the mob lynched an estimated 17 to 20 Chinese immigrants.
But Wong himself had a life in the United States, and, though he had traveled to China before and had been readmitted into the U.S. without any issues, his 1895 trip presented a host of problems. Authorities ordered the Chinese-American to return to the ship.
Chinese immigrant aid organization Six Companies stepped in to provide Wong legal help. Wong’s lawyer, Thomas D. Riordan, argued that the cook’s reentry into the U.S. was protected under the 14th Amendment. As the case escalated to federal court, immigration hard-liners fought back, claiming Wong’s accident of birth didn’t mean citizenship.
In the end, the U.S. Supreme Court ruled in favor of Wong.
If the Trump administration issued an executive order, it would be immediately challenged in the courts, and judges would likely rely on Wong Kim Ark to find the executive order unconstitutional, Kohli said.
Many conservatives and even officials appointed by Trump himself disagree with the president’s stance on birthright citizenship.
The plain meaning of this language is clear, James Ho, whom Trump appointed as a federal appeals court judge, wrote in 2011 of the 14th Amendment.
Ho, then a solicitor general of Texas, wrote that a foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey US law.
House Speaker Paul Ryan (R-Wis.) addressed Trump’s comments, telling a Kentucky radio station earlier this week that you cannot end birthright citizenship with an executive order ― to which Trump responded that Ryan knows nothing about birthright citizenship.
Kohli pointed out that those who oppose birthright citizenship are in the minority.
It’s clear that most Americans have embraced birthright citizenship and believe that anyone who is born here should have the right to be a citizen. A few political leaders are trying to further a white supremacist agenda and create a ‘fix’ to a problem that doesn’t exist, she said.
What’s more, Many scholars have noted that birthright citizenship has helped the U.S. integrate each new wave of immigrants as their children are recognized as U.S. citizens.
Language in this post has been amended to refer to Wong by his surname, rather than his given name.
Read more:https://www.huffingtonpost.com/entry/chinese-cook-case-birthright-citizenship_us_5bd9ecf5e4b0da7bfc1689d6
Originally published by Yahoo
Thousands of U.S. troops to stop an “invasion” of migrants. Tent cities for asylum seekers. An end for the Constitution’s guarantee of birthright citizenship.
With his eyes squarely on next Tuesday’s elections, President Donald Trump is rushing out hardline immigration declarations, promises and actions as he tries to mobilize supporters to retain Republican control of Congress. His own campaign in 2016 concentrated on border fears, and that’s his final-week focus in the midterm fight.
“This has nothing to do with elections,” the president insists. But his timing is striking.
Trump says he will send more than 5,000 military troops to the Mexican border to help defend against caravans of Central American migrants who are on foot hundreds of miles away. Tent cities would not resolve the massive U.S. backlog of asylum seekers. And most legal scholars say it would take a new constitutional amendment to alter the current one granting citizenship to anyone born in America.
Still, Trump plunges ahead with daily alarms and proclamations about immigration in tweets, interviews and policy announcements in the days leading up to elections that Democrats hope will give them at least partial control of Congress.
Trump and many top aides have long seen the immigration issue as the most effective rallying cry for his base of supporters. The president had been expected to make an announcement about new actions at the border on Tuesday, but that was scrapped so he could travel instead to Pittsburgh, where 11 people were massacred in a synagogue on Saturday.
Between the shootings, the deadliest attack on Jews in U.S. history, and the mail bomb scare targeting Democrats and a media organization, the caravan of migrants slowly trudging north had faded from front pages and cable TV.
But with well-timed interviews on Fox and “Axios on HBO,” Trump revived some of his hardest-line immigration ideas:
– An executive order to revoke the right to citizenship for babies born to non-U.S. citizens on American soil.
– And the prolonged detention of anyone coming across the U.S.-Mexico border, including those seeking asylum, in “tent cities” erected “all over the place.”
The administration on Monday also announced plans to deploy 5,200 active duty troops – double the 2,000 who are in Syria fighting the Islamic State group – to the border to help stave off the caravans.
The main caravan, still in southern Mexico, was continuing to melt away – from the original 7,000 to about 4,000 – as a smaller group apparently hoped to join it.
Trump insists his immigration moves have nothing to do with politics, even as he rails against the caravans at campaign rallies.
“I’ve been saying this long before the election. I’ve been saying this before I ever thought of running for office. We have to have strong borders,” Trump told Fox News host Laura Ingraham in an interview Monday.
Critics weren’t buying it.
“They’re playing all of us,” said David W. Leopold, an immigration attorney and counsel to the immigration advocacy group America’s Voice. “This is not about locking people up. This is not about birthright citizenship. This is about winning an election next week.”
Trump’s citizenship proposal would inevitably spark a long-shot legal battle over whether the president can alter the long-accepted understanding that the 14th Amendment grants citizenship to any child born on U.S. soil, regardless of his parents’ immigration status.
Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union in New York, said the Constitution is very clear.
“If you are born in the United States, you’re a citizen,” he said. He called it “outrageous that the president can think he can override constitutional guarantees by issuing an executive order,
James Ho, a conservative Trump-appointed federal appeals court judge, wrote in 2006, before his appointment, that birthright citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
Even House Speaker Paul Ryan, typically a supporter of Trump proposals, said on WVLK radio in Kentucky: “Well you obviously cannot do that. You cannot end birthright citizenship with an executive order.”
But Trump says he’s been assured by his lawyers that the change could be made with “just with an executive order” – an argument he has been making since his early days as a candidate, when he dubbed birthright citizenship a “magnet for illegal immigration” and pledged to end it.
“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,” he said in an Axios interview excerpt released Tuesday.
Not so, according to a 2010 study from the Center for Immigration Studies, a group that supports immigration restrictions, that said at least 30 countries offered birthright citizenship.
Vice President Mike Pence said the administration was “looking at action that would reconsider birthright citizenship.”
“We all know what the 14th Amendment says. We all cherish the language of the 14th Amendment. But the Supreme Court of the United States has never ruled on whether or not – whether the language of the 14th Amendment, subject to the jurisdiction thereof, applies specifically to the people who are in the country illegally,” he said at a Politico event.
The non-partisan Migration Policy Institute estimates that there are more than 4 million U.S.-born children under the age of 18 who have an unauthorized immigrant parent.
A person familiar with the internal White House debate said the topic of birthright citizenship has come up inside the West Wing at various times – and not without some detractors. However, White House lawyers expect to work with the Justice Department to develop a legal justification for the action. The person was not authorized to discuss the policy debate so spoke on condition of anonymity.
In Trump’s Monday interview with Fox, he said the U.S. also plans to build tent cities to house migrants seeking asylum, who would be detained until their cases were completed. Right now, some asylum seekers, particularly families, are being released as their cases progress because there isn’t enough detention space to house them.
“We’re going to put tents up all over the place,” Trump said. “They’re going to be very nice, and they’re going to wait, and if they don’t get asylum they get out.”
The country is facing a massive backlog of immigration cases – some 700,000 – and there are more and more families coming across the border from Central America – groups who cannot be simply returned over the border. But experts question the legality and practicality of what would amount to indefinite detention.
The options are just two of many possibilities currently under discussion, including asylum law changes and simply barring members of the migrant caravans from entering the country using the same mechanism as the president’s much-publicized travel ban for people from certain Muslim countries.
Administration officials say decisions are unlikely until after the midterm elections, in part because of the synagogue shooting and pipe-bomb scare.
But some supporters in Congress are rushing to cheer Trump on.
GOP Rep. Steve King of Iowa, who has introduced legislation to end birthright citizenship, said Trump was deftly seizing on an issue that was sure to help in the midterms.
“That ability to move on instinct without hesitation, that’s why he’s president,” King said.
Read more:https://www.yahoo.com/news/trump-end-birthright-citizenship-us-111625767.html
