Tuesday, October 30, 2018

Presidential Authority

Instapundit has a great blog post about President Trump's declaration that he is considering ending "birthright citizenship" by executive order:
REPORT: Trump Targeting Birthright Citizenship With Executive Order. My first thought is that he can’t do this because of the 14th Amendment, but my second thought is that lots of constitutional rights that seem to me to be clearly established in the text have been interpreted away over the years. Hey, it’s a living Constitution, right? It must be informed by experience, and the needs of the day!

UPDATE: Am I kidding? Yes, and no. The Supreme Court precedent here doesn’t involve illegal immigrants and you can make a good argument that in adopting this rule the President is acting in a foreign affairs capacity — since he’s trying to discourage people abroad from coming here — and that gets a lot of judicial deference. Here’s some quick discussion of the law. I can certainly imagine a Supreme Court opinion holding that the core purpose of the birthright citizenry provision was to guarantee the citizenship of freed slaves, something not applicable here, and that the destabilizing effect of mass migration (see Europe), along with the foreign affairs component, demonstrates that the issue is best dealt with by the political branches.
Don't just listen to "your side" of the argument. Read the Constitution, specifically the 14th Amendment, and even read the actual Wong Kim Ark Supreme Court ruling that both sides mention.  Assess the arguments on both sides and see which one is stronger, not just which one you agree with.

After you've done your reading, then you're educated enough to discuss the topic.  Until then, you're just spouting your side's talking points.

By the way:  Lefties, remember when you decreed that President Obama could run the country by executive order because you didn't like that the Republican-led Congress wouldn't craft the laws he wanted?  You liked executive orders then!  There's a lesson for you to learn here, and that's never ask for a political weapon that you wouldn't feel comfortable yielding to the other side--because eventually, the other side will be in power.

Update, 10/31/2018:  If you're a liberal, did you agree with Harry Reid?


Steve USMA '85 said...

So I did what you said to do. I read the materials. From my take, there are two options to try and negate birthright citizenship and neither are strong arguments.

1st Argument: All the laws and previous cases cites refer to the newborn child of an alien residing, even temporarily in the lands of the United States has citizenship conferred upon them. However, the law never mentions that the status of the parent alien's residency. One could make the argument that this birthright is only for those whose alien parents are legally residing in the United States (for whatever length of time) get citizenship conveyed upon them. However, for this to be the basis, a law would have to be passed to define the legal standing of the alien parent at time of birth. ie, if alien parent is in the United State for a legal business trip for a few hours and their child is born, the child is granted citizenship. If the alien parent is in the United States illegally at the time, then the citizenship is not automatically granted.

If such a law was passed, I do not think it would have high likelihood of surviving a Constitutional challenge in the courts.

2nd Argument: In all of the Common Law cited, there is an iron-clad exception that children born of hostile occupiers of portions of the United States are not citizens of the United States. ie, foreign invader occupies part of the United States and during the occupation has a child. That child is considered a citizen of the occupiers country, not the United States. One could make the argument that an illegal immigrant is a hostile force by reason of entering the Unites States without permission. Therefore, any child born to them is a citizen of the parent's country, not the Unites States.

Again, I don't think it would pass a Constitutional challenge but I am no lawyer. However, I do think that this second argument has a higher chance of passing muster.

Pseudotsuga said...

"...because eventually, the other side will be in power."
But not if the self-righteous lefties and their friends in the "Democratic" party have their way...

Coach Brown said...

Point 1-
Going back to 1898, the Judiciary has supported the idea that being born in the United States confers the rights of citizenship as per the 14th Amendment. That has been supported over and over again in the 1990s as precedent.

Point 2-
There are cases that infer that citizenship is still a birthright as recent as 2004 in the Hamdi vs. Rumsfeld case.

Point 3-
My guess is that an Originalist would look at any Executive Order and laugh it out of the Court because Article One of the Constitution is pretty clear about who makes laws and no where in the document does it contain legislative power via Executive Order.

Point 4-
My other guess is that SCOTUS hates chaos and would find an Executive Order ridiculous because the next president could simply overturn it.

Point 5-
Hi Darren.


Darren said...

Coach, if all law were as simple as you claim, we'd have no need to have a Supreme Court. After all, in what cases prior to Janus was the right *not* to join a union ever decided?