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constitutional crisis
Defend Birthright Citizenship From Right-Wing Attacks
Losing the protections of citizenship that we have enjoyed for the last 100 plus years would leave us with an unrecognizable, radically different country than we have today.
Sep 09, 2023
As the Republican party continues to move in an extreme, right-wing direction on issues of immigration, they have begun to target the concept of birthright citizenship for children of undocumented immigrants with increasing frequency. In a recent piece from Axios, we learned that Donald Trump would “seek to end birthright citizenship” if re-elected in 2024. While president, he famously lied and said that the U.S. is the only country that allows birthright citizenship, even though this is easily debunked. Florida Governor Ron DeSantis’ campaign website says that he will, “…take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States.”
Although this is not a new concept among people on the far-right, this idea of ending birthright citizenship has become a bigger and bigger talking point in recent years.
Birthright citizenship is probably something that most people born in the U.S. have not thought about, but I would argue that it is a fundamental right that we take for granted. However, we no longer have the luxury of being able to take it for granted because right-wing forces in the U.S. are seeking to end it. If they succeed, it will be a massive catastrophe that opens the door to a new era of disenfranchising people’s rights.
What is Birthright Citizenship and Where Does It Come From?
Birthright citizenship, known by the legal term “jus soli,” is the idea that you are a citizen of the country where you are physically located when you are born. In the U.S., birthright citizenship comes from the 14th Amendment to the U.S. Constitution, which states, “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 14th Amendment is applied today to give most people born physically in the U.S. citizenship, with a few notable exceptions. The main exception is children of foreign diplomats who are born in the U.S. while their parents are on diplomatic missions. The other notable exception was Native Americans, but this has subsequently been addressed through congressional legislation granting U.S. citizenship to all Native Americans.
The key point to understand is that our modern interpretation of the 14th Amendment means that a child who is born physically in the U.S. is a U.S. citizen, even if their parents do not possess lawful immigration status. This is the concept that conservatives like Trump and DeSantis are seeking to do away with as part of their never-ending quest to target the immigrant population.
What Is the Conservative Argument Against Birthright Citizenship?
Conservatives have two main arguments that they like to make when attacking birthright citizenship. The first argument is a legal one. They claim that the 14th Amendment does not really apply to children of undocumented immigrants. This argument seems absurd because the text of the 14th Amendment is very clear, but their argument rests on the phrase “subject to the jurisdiction thereof.”
The 14th Amendment basically has two requirements for U.S. citizenship: 1) being born inside the U.S.; and 2) being “subject to the jurisdiction thereof.” Conservatives argue that because the parents do not have lawful immigration status, they are not “subject to the jurisdiction” of the U.S., nor are their children. Therefore, the children born to people without lawful immigration status are not U.S. citizens, according to conservatives.
This argument does not make any sense because anyone who is in the U.S. is subject to the laws of the U.S., i.e., they are subject to the jurisdiction of the U.S. Again, the exception to this is people with diplomatic immunity, which is why the children of diplomats are not covered by the 14th Amendment. This question was very soundly answered inUnited States v. Wong Kim Ark, where the court reaffirmed that a child born to Chinese parents in the U.S. is a U.S. citizen, regardless of whether the parents were eligible to gain U.S. citizenship themselves.
The idea that coming to the U.S. without status and having a child here is some kind of magic ticket to a green card is simply false.
Conservative lawyer and criminal defendant in the State of Georgia, John Eastman, frequently advocates against birthright citizenship. He argues that Wong Kim Ark does not grant citizenship to children of undocumented immigrants because Wong Kim Ark’s parents were residents who were domiciled in the U.S., and that they were therefore like lawful permanent residents (green card holders). In the piece I cited above, Linda Chavez shoots this down because the modern concept of “lawful permanent resident” did not exist when this case was settled at the end of the 19th century, and the logic of the case is clear that citizenship is granted to anyone regardless of their parents’ immigration status, unless they are children of foreign diplomats.
Eastman’s legal argument is very weak, and not many people share his view. Also, I would take anything he says with a grain of salt because his legal advice is likely going to land him in jail in Georgia. If you have time, I recommend reading Wong Kim Ark so that you can see for yourself that the ruling in the case covers all children regardless of the immigration status of their parents.
The other argument that conservatives like to make is a policy argument that birthright citizenship encourages illegal immigration. This argument is flawed for a few reasons. First, as I have written about previously, the main source of illegal immigration is right-wing U.S. policy that pushes people out of their home countries, and right-wing immigration policy that denies people a practical, safe, and legal way to come to the U.S. Second, having a U.S. citizen child does not mean that someone without legal status can automatically get a green card and stay in the U.S. forever. They would have to wait until their child turns 21 before the child can petition for a green card for their parent. Further, if the parent crossed the border illegally, they would not be able to obtain a green card in the U.S. without first getting a waiver approved, which is very difficult, and then leaving the U.S. The idea that coming to the U.S. without status and having a child here is some kind of magic ticket to a green card is simply false.
A Conservative Government Attacking Birthright Citizenship Would Be a Nightmare
To me, the most compelling reason to advocate for birthright citizenship is that it takes the question of who is a citizen out of the hands of politicians, specifically, Republican politicians who will try to weaponize it. Just as they manipulate the levers of government to disenfranchise people from voting through gerrymandering, voter ID requirements, and disenfranchising felons, if a Republican government had the power to challenge people’s citizenship, they would do it, and it would be awful.
Let’s imagine for a second the nightmare dystopia that would result from a Republican attack on birthright citizenship. It would start with a Republican president directing ICE to arrest and detain anyone born in the U.S. whose parents are undocumented. It would almost certainly be targeted at the Latino and Caribbean communities. People detained by ICE are sent to ICE detention facilities, which are notorious for their inhumane conditions, and then placed in removal proceedings, which is the legal term for an immigration court trial in which the government seeks to deport someone. The government would argue that the people being detained are not citizens because their parents lacked lawful status. Thus, those people born in the U.S. have no lawful status and are removable (deportable).
People in immigration court do not have the right to an attorney because immigration proceedings are not considered criminal matters. Further, people in ICE detention do not have a right to be released on bond while they are awaiting their hearings. Many people face mandatory detention where they have no right to even request a bond for release. If they are eligible for a bond hearing, the immigration judge has discretion on whether to approve it or not.
An aggressive, proto-fascist government could immediately begin detaining anyone whose parents, grandparents, or ancestors even further back, cannot be shown to have had lawful immigration status.
What we saw during the Trump years was an immigration court system heavily controlled by then Attorney General Jeff Sessions that constantly pushed the Trump administration’s agenda into immigration court rulings. We also saw a right-wing packed federal judiciary regularly rule to keep Trump’s policies in place until the end of the trial. There is no reason to think that it would play out any differently if we had a second Trump administration. Before the courts make a final ruling, an aggressive government could detain untold numbers of people, unless a judge placed an injunction on the practice.
The cases for these hypothetical people who were born in the U.S. but whose citizenship is being challenged would almost certainly make their way to the Supreme Court. Once the cases get to the Supreme Court, it would be up to the ultra-right 6-3 majority to decide if they want to upend over 100 years of legal precedent to deny citizenship to people born in the U.S. If they ruled in favor of the government, it would be a disaster. An aggressive, proto-fascist government could immediately begin detaining anyone whose parents, grandparents, or ancestors even further back, cannot be shown to have had lawful immigration status. A Republican administration would weaponize this against the Latino community and try to deport people who are rightfully U.S. citizens and have lived here all of their lives. They would almost certainly target people in swing states in order to try and sway presidential elections in their favor, just like they do with gerrymandering and voter purges.
If the Supreme Court struck down birthright citizenship for children of undocumented immigrants in the 14th Amendment, it would be up to Congress to pass a law to restore that right. I am sure that whatever citizenship law they pass would be worse than what we have now: The only question is, “How much worse would it be?” Needless to say, this would be a nightmare. People would be locked up in ICE detention, they’d lose their right to vote, and the door would be wide open for a whole host of abuses. It would be the end of the America that we have known for our whole lives.
Birthright Citizenship Is Good for America
Although I think the nightmare scenario I outlined above is the most immediately compelling reason to keep our current interpretation of the 14th Amendment in place, I also want to highlight some of the positive benefits that it brings. First, having more citizens raises the gross domestic product and the standard of living for all. Second, having more foreign born citizens expands U.S. soft power and gives us immeasurable cultural and linguistic connections with the rest of the world. Third, it helps prevent people from becoming stateless, which is a humanitarian catastrophe that no one should have to face. Fourth, it expands the U.S. tax base and helps attract more talent from around the world.
As I mentioned before, there isn’t really a good argument against having more citizens. The only policy argument I hear is that it encourages illegal immigration, which I have discussed above. This leads me to conclude that those pushing against birthright citizenship are motivated by other factors, most likely based on political calculations about how they think children of immigrants will vote, or based on racism.
In conclusion, we need to defend the concept of birthright citizenship as enshrined in the 14th Amendment. When Republicans attack it, we need to rhetorically punch back, talk about the benefits of birthright citizenship, and ask them why they want politicians to weaponize the concept of who is and who is not a citizen. We also need to make sure that judges who are nominated to our federal courts, as well as Supreme Court justices, correctly interpret the 14th Amendment to apply it to children of undocumented immigrants. Losing the protections of citizenship that we have enjoyed for the last 100 plus years would leave us with an unrecognizable, radically different country than we have today. It would truly represent a major step backward for our country.Keep ReadingShow Less
5 Takeaways from Trump’s 4 Indictments
The indictments are not only a first for Trump, but for the entire nation as well.
Aug 17, 2023
You might need a calculator to compute the exact total (and you’d be wise to do your own math) but with the August 14 indictment of Donald Trump in Fulton County, Georgia, the former president stands accused in four separate prosecutions of committing at least 91 state and federal felonies.
The scoreboard breaks down like this:
In New York, he’s been charged with 34 counts of falsifying business records to cover up the hush money payments to porn star Stormy Daniels during the 2016 presidential campaign. Unless removed to federal court in a legal maneuver that rarely succeeds and which to date has failed, the case will be tried in state court in Manhattan. A trial date of March 25 has been set.
If anyone other than a former president had engaged in the kind of multifaceted crime spree for which Trump stands accused, they would have been charged and tried long ago.
In Florida, he’s been charged with 40 counts of willful retention of national defense information, obstruction of justice, conspiracy, and other offenses in what has become known as the Mar-a-Lago documents case. Two other defendants—Walt Nauta, Trump’s longtime valet; and Carlos de Olivers, the property manager at Trump’s golf resort—are accused of committing some crimes jointly with Trump and others on their own. The case will be tried in Palm Beach County, Florida. A trial date of May 20 has been set.
In Washington, D.C., he’s been charged with four counts of conspiracy to defraud the United States, obstruction of justice and conspiracy against voting rights related to the creation of fake slates of electors and the plot to disrupt the Jan. 6, 2021, joint session of Congress and the peaceful transition of power to President Joe Biden. Six other unnamed individuals are listed in the indictment as co-conspirators. Five have been identified by news outlets as attorneys Rudy Giuliani, John Eastman, Sydney Powell, Jeffrey Clark, and Kenneth Chesebro. The sixth, described in the charging document as a “political consultant,” remains a matter of speculation. The case will be tried in the nation’s capital. No trial date has been set.
In Georgia, he’s been charged with 13 counts of conspiracy, criminal solicitation, forgery, and violations of Georgia’s RICO (Racketeer Influenced and Corrupt Organizations) Act. Eighteen other individuals, including Giuliani, Powell, Eastman, Chesebro, Clark, former Trump chief of staff Mark Meadows, and attorney Jena Ellis, have also been charged with overlapping and separate crimes. Unless removed to federal court, the case will be tried in Fulton County. No trial date has been set.
As the cases proceed, Trump’s lawyers can be expected to file numerous motions to challenge the legal sufficiency of the indictments, test the strength of the prosecutions against their client, and delay any trials as long as possible, preferably until after the 2024 election. At the same time, Trump’s propagandists on cable news and social media will fill the airwaves and the internet with renewed and heightened claims of political persecution, and thinly veiled threats of revenge.
Cutting through the noise will be difficult. But here are five major takeaways from the indictments to keep you focused and help you follow events as they unfold:
Trump Is Finally Being Held to Account in a Criminal Case
From his formative years as a New York City real estate developer, Trump has played fast and loose with the law, but somehow managed to escape criminal accountability. In 1973, the Justice Department filed a civil suit against him, his father Fred, and their management company for discriminating against prospective Black tenants. The case was settled two years later with a consent decree and no admission of wrongdoing.
As president, Trump avoided conviction in two Senate impeachment trials. And while he has also lost some important and embarrassing private civil actions—most recently, the sexual assault case involving writer E. Jean Carroll—the indictments mark the first time he will be tried for criminal offenses that could put him in prison for the rest of his life.
As a Nation We Have Entered Uncharted Territory
The indictments are not only a first for Trump, but for the entire nation as well.
Apart from the somewhat comical 1872 arrest of President Ulysses S. Grant by a District of Columbia police officer for driving his carriage through the streets of Georgetown at an excessive speed, no sitting or former American president has ever been charged with committing a crime. Grant was taken to a local police station, where he paid a fine and was released.
A draft indictment of President Richard Nixon for his role in the Watergate affair was prepared, but never voted on by the federal grand jury convened to investigate the infamous burglary and cover-up.
Trump stands alone.
The ‘Rule of Law’ Is at Stake, but With Undeniable Political Implications
One of the great shibboleths of American jurisprudence is that we are a nation that operates according to the “rule of law.” The Administrative Office of the U.S. Court system maintains a website on behalf of the federal judiciary that defines the rule of law as “a principle under which all persons… are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.”
If anyone other than a former president had engaged in the kind of multifaceted crime spree for which Trump stands accused, they would have been charged and tried long ago. The indictments lodged against Trump are consistent with the rule of law. They are not politically motivated.
That does not mean, however, that there are not profound political ramifications to the indictments. Trump is still likely to be the Republican presidential nominee in 2024. His prosecutions will be a dominant campaign issue.
Scheduling the Trials Will Be a Logistical Nightmare, and Trump May Be Acquitted
Although trial dates have been set in New York and Florida, they should be considered tentative. Trump will be required to attend his trials in person, and he can only be in one courtroom at a time, which means that only one or two trials at most can be expected to commence before the next election.
If, and when the trials begin, Trump will be presumed innocent like every other defendant. And despite the apparent strength of the indictments, the cases are not slam dunks. Any one of them could be derailed by a stealth Trump juror, especially in Florida, where the trial will be presided over by District Court Judge Aileen Cannon, who is not only inexperienced but has previously demonstrated a bias in favor of the former president.
Trump and the MAGA Movement Have Precipitated a Constitutional Crisis
As I have written in these pages before, legal scholars clash over the definition of a constitutional crisis, but generally agree that such existential reckonings arise from power struggles between political actors or movements that believe their opponents have violated the Constitution and neither is willing to yield ground. The Civil War is the prime historical example.
Although we are not divided today into regional armies as we were in the 1860s, we are cleaved along a new battlefront, pitting an illiberal form of authoritarianism represented by Trump and the MAGA cult that has captured the Republican party against what remains of American democracy.
Should Trump manage to win the next election and become president again, he will without doubt use his authority to dismiss the federal cases against him, and perhaps, in another instance of constitutional norm busting, issue a pardon to himself.
While he will not be able to pardon himself for state crimes, he will likely petition the Supreme Court to intervene and stay any state court proceedings until he leaves office. In its ruling in Clinton v. Jones (1997), the high court allowed Paula Jones’ federal case to proceed, but observed that under the Constitution’s Supremacy Clause, it might not have permitted a state case to continue against a sitting president.
There are respected legal commentators who believe prosecuting Trump could have terrible consequences for the country, compounding our festering and rancorous divisions. The only thing worse, however, would be not prosecuting him at all.
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For Trump and GOP, No Hope, Just the Audacity of Lies
They have nothing to sell but fear itself.
Aug 30, 2020
During the first Clinton term, I worked on the public TV series In Performance at the White House.
One of our episodes was an Aretha Franklin concert on the South Lawn. The show was great. It goes without saying what a remarkable talent she was. But Ms. Franklin was demanding, too. At one point she insisted we shoot her in a designer ballgown as she made a grand entrance, coming down the stairs from the executive mansion's Truman Balcony. We cut it from the final show; for whatever reason, no matter how we tried in the editing room, it just looked cheesy.
The potential for cheese didn't stop Donald and Melania Trump. Thursday night, they dramatically descended that same staircase just before the president made his big acceptance speech.
Here's another difference between our show and that big South Lawn GOP convention finale on Thursday. Aretha Franklin was the Queen of Soul.
The Trumps just think they're royalty. And so do a lot of their followers.
Because my, what a coronation the Republicans had! The floodlights! The fireworks! The empty, inflammatory rhetoric and propaganda! The massive and flagrant violations of the Hatch Act, using government property and personnel for political gain! Trump! Trump! Trump!
Friday morning, much of the nation awoke with a hangover, having gotten literally or metaphorically drunk the night before from either the elation of seeing their boy pour on his patented brand of bull or the depressing realization that he could still win this thing.
What's clear from his 70-minute remarks and all the other speechifying is that Donald Trump and his Republican cohort have decided they can lie with impunity, subvert the truth and heedlessly break the rules because their devoted base doesn't know or care about such lawlessness, and nobody pushes back much, so why the hell not?
The notion that each of us should possess a moral compass that guides our conscience and actions no matter what, no matter where you are or whom you're with, has vanished. Trump and his gang are poster children for situational ethics; they'll do or say anything, even incite violence. The ends always justify the means.
And they also justify the mean -- that is, the cruel, uncaring heartlessness of gimme-gimme avarice and the bigotry of race, religion, gender and class prejudice. On the first night of their confab, when young right-wing activist Charlie Kirk absurdly described Trump as "the bodyguard of western civilization," every racist hound in a 5000-mile radius heard the dog whistle: Kirk, of course, really meant white Christian civilization.
It was an unending tumble downhill from there. Kimberly Guilfoyle, girlfriend of Don Trump, Jr., national chair of the Trump Victory Finance Committee 2020 and former Fox News personality, shouted her way, Nuremburg-style, through a speech in which she - former wife of California's Democratic Governor Gavin Newsom -bellowed, "Do you support the cancel culture, the cosmopolitan elites of Nancy Pelosi, Chuck Schumer and Joe Biden, who blame America first? Do you think America is to blame?!"
Cloud Cuckooland hypocrisy filled the air. Mark and Patricia McCloskey, the entitled St. Louis couple who pointed guns at peaceful Black Lives Matters demonstrators warned, "No matter where you live, your family will not be safe in the radical Democrats' America." Former Florida Secretary of State Pam Bondi, who accepted an illegal $25,000 campaign contribution from a Trump charity shortly before she dismissed a lawsuit against now-defunct Trump University, accused Joe Biden of nepotism - which, compared to the Trumps turning the Federal government into one more corrupt family business, is worthy of open mic night at the Ha-Ha Club. In his remarks, Vice President Pence consoled the sister of Federal Protective Service Agent Dave Patrick Underwood, shot and killed during the recent protests in Oakland, California but failed to mentionthat his alleged murderer is an acolyte of the Boogaloo Bois, the alt-right white supremacists actively seeking race war.
Trying to divert attention from Trump's fatal fumbling of the crisis, the pandemic was barely acknowledged and when it was, the falsehoods and misleading statements flowed. There were occasional expressions of sympathy, but largely, the coronavirus plague was presented as if it was something aberrant that had happened once upon a time in the past, even though during the four nights of the GOP convention more people died from COVID-19 than were killed on 9/11. At the acceptance speech, there was no social distancing and barely a soul wore a mask. Masks, of course, are for losers...
Over the course of his acceptance speech, like many of those who went before him last week, Trump threw the requisite red meat to his base - lock your doors, the socialists and anarchists are on the march, and they're using Joe "the Destroyer of American Greatness" Biden to burn down your suburban homes and steal your guns and hamburgers! There were no new programs proposed, no agenda for a second term except more of the same. In fact, several parts of the address seemed an almost word-for-word reiteration of his 2016 "And I Alone Can Fix It" convention speech with one big difference -- the wild-eyed accusations of a challenger seemed more than a little weird when they're coming from the incumbent on whose watch all of this alleged mayhem is happening.
Also, compared to 2016, Washington Post columnist EJ Dionne noted, the 2020 Trump looks like a man who knows his show is about to be canceled." With any luck, a heavy turnout and a modicum of common sense, the kind of claptrap the president spews --his own little, fascistic Triumph of the Bilge - won't be enough to sway the swing voters he needs to win him reelection. But danger lurks. The kind of unhinged demagoguery in which Trump excels is seriously seductive to some. There are polling numbers out there that indicate shifts back toward this incompetent corrupt bully -- that the panic he peddles makes the hesitant weak and the irrationally violent turn up the heat and pick up their weapons.
That's because the only thing Trump has to sell is fear itself. People like him and the countless dictators before him use red-in-tooth-and-claw propaganda and despicable scare tactics because they work. The vitriol so rampant in Thursday night's acceptance speech was repeated Friday night at his rally in New Hampshire and will keep hammering us until November and beyond. We must turn our backs to it and vote with the conscience and sense of community he lacks.
Trump sees himself as emperor; the only royal title he truly deserves is Clown Prince. But like those sinister jokers in the movies whose villainy lurks behind a painted smile, Trump despises anyone else's happiness and only seeks to consolidate power and malevolence through chaos.
In a 1787 letter, patriot John Jay, the man who would become our first chief justice, asked, "Shall we have a king? Not in my opinion while other Expedients remain untried." Our constitutional presidency was the answer and its success would be tied to the faithful adherence to the three separate yet equal branches of government and the system of checks and balances.
But nine years later, in his Farewell Address, the man to whom Jay asked his question, our first president, George Washington, warned that our government could be manipulated by "cunning, ambitious, and unprincipled men" seeking "to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion."
Send in the clowns. Those men and their despot at the top are here. When it comes to our democracy, if Donald Trump is reelected and the Senate remains Republican, you've only seen the beginning - and caught a glimpse of the end. Contrary to all the GOP convention bombast, the worst is yet to come.
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