05 November 2018

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.