POISONED APPLES
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At lunch the other day I
asked my friend, a distinguished lawyer, born in the Bronx 66 years ago, if he
was the son of immigrants. "Of course,'' he said, "aren't you?"
"Yup," I said, "
and it happens that I have hanging on my office wall, my father's
naturalization certificate. My mother was born in Manhattan, though I have no proof
that her immigrant parents were legal entrants to this country. So, if
challenged by Donald Trump's Justice Department, I am not sure I could prove
that I and my siblings are citizens, though we were all born here. Can you?"
"Of course not," he said, "both my parents were immigrants and
though I assume they came here legally, I have no proof that is the case."
Of course, I was just playing
games. My friend and I are both white and are not Muslims. At least today, we
are not the targets of Donald Trump's claim that the 14th Amendment birthright
section does not apply to the children of undocumented immigrants.
The claim that the 14th
Amendment does not apply to the native-born children of undocumented aliens is
outrageous on many fronts.
Most importantly, it is legally untenable. No
matter how unread he may be, Trump and his team must be aware of that because of i) the plain language of the Amendment, ii) its legislative history, and
iii) the Supreme Court decisions on the subject, the claim has no merit.
The relevant language of the
Amendment is as follows;
"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."
The Trumpian claim is that
the clause does not apply to children of undocumented residents of the United
States because they are "illegal aliens" and therefore are not "subject
to the jurisdiction" of the United States.
First, the plain language of
the Amendment says no such thing. Children of illegal aliens who are in the
United States are obviously subject to all the laws of the United States and
the State of they happen to be in at any time.
Second, the legislative
history makes clear that the subject-to-the-jurisdiction exception applies only
to i) children born to a foreign occupying power, and ii) children of diplomats
who are not subject to the laws of this country because they have diplomatic
immunity.
Third, the suggestion that
illegal aliens are not "subject to
the jurisdiction of the United States" has been firmly rejected by the
Supreme Court. I mention two of those decisions here.
In the latter half of the nineteenth
century, the hated-immigrants-d'-jour were the Chinese, and the Chinese Exclusion
Act was in force. A young man, born in
the United States to parents who had born in China and were, in the language of
the Supreme Court ''subject to the Emperor of China but domiciled in the United
States," departed the United States for a visit to China. Upon his return,
he was barred from re-entry. The claim was
that because his parents were subject to the Emperor of China, he was not "subject
to the jurisdiction" of the United States and therefore not a U.S. citizen
under the birthright provisions of the 14th Amendment. The Supreme Court (ours, not China's) ruled
unambiguously to the contrary. The child was a U.S. citizen because he was born
here and both he and his U.S. domiciled parents were "subject to the
jurisdiction of the United States."
Even more potent was a
decision by the Supreme Court more recently. In 1982, the laws of the State of Texas denied education funds to undocumented
children living within its borders. A student challenged that statute in federal
court, asserting an Equal Protection claim. The Fourteenth Amendment reads:
"No State shall deny to
any person within its jurisdiction the Equal Protection of the laws."
Texas argued the student was
not entitled to the equal protection of its laws because an undocumented alien
was not "within the jurisdiction of the United States." All nine Justices of the Court rejected that
assertion.
The five Justice majority,
led by Justice Brennan, ruled for the
plaintiff and found the State's "within-the-jurisdiction" claim to be
without any legal basis and the plaintiff had been denied the equal protection of Texas laws. The four conservative dissenters, Rehnquist, Burger,
White, and O'Connor quibbled with the majority's equal protection "strict
scrutiny" analysis (don't go there, only big brained professors do), but they agreed with the majority in
rejecting the State's far-out claim that undocumented aliens are not
"within the jurisdiction of the United States". The conservative
dissenters wrote they were aware of the "millions of illegal aliens who
cross our border" but that was a not relevant to the Constitutional issue.
They flatly rejected the State's claim:
"We have no quarrel with
[the majority's] conclusion that the Equal Protection clause of the 14th
Amendment applies to those who, after their illegal entry into this country,
are indeed physically 'within the jurisdiction' of a State. ... Every person,
'citizen or stranger' who is subject to the laws of a state, is 'within its
jurisdiction."
I suggest Trump will not sign an executive
order cancelling birthright citizenship to the children of undocumented aliens.
This lie is just a political stunt. He serves up red meat for those of his
followers who either i) are as unread as he is, or ii) know it is an absurd
claim but are so rabidly opposed to immigration they don't care.
That's what is really scary
about this political stunt: it reveals, and fires up, a segment of our body politic that is
willing to ignore fundamental tenets of our democracy to serve temporary
passions. If the government could simply declare, on the basis of an exigent political theme, that the birthright clause of the 14th Amendment doesn't mean what it
says, it can logically do the same to the rest of the Amendment. Without the Equal Protection clause and the
Due Process clause, the federal government could strip millions of undocumented
domiciliaries of virtually the entire Bill of Rights.
And if we allow the
political-claim-of-the-day to supersede the plain language of the Constitution,
what's to stop Trump from tomorrow declaring that the First Amendment no longer
applies to journalists, because the Framers did not intend it to apply to
"enemies of the people?" I suggest such an assertion is no more
absurd than the current claim that children of undocumented immigrants are not
covered by the 14th Amendment. Indeed, it
is, one could argue, even more powerful: After all, it can asserted that while the
Supreme Court has repeatedly ruled Trump's birthright cancellation is nonsense, there is no court ruling rejecting
a claim that a declaration that the press is an "enemy of the people"
effectively cancels journalists' First Amendment rights.
The Trumpian birthright-cancellation claim is, as the
late Justice Anton Scalia would say, "pure applesauce." And in this instance, the sauce is made from
a poisoned apple.
A bientot.
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