31 October 2018

President Trump's Radical Notion on Birthright Citizenship: Enforce The Law

Wong Kim Ark
Without a doubt, President Trump excels at one thing above all else: a perverse capacity to make liberal heads explode with a word. Witness his latest triggering of progressives in both government and the media with his contemplation of an executive order to curtail birthright citizenship.
"It was always told to me that you needed a Constitutional amendment–guess what? You don’t," Trump said. "Number one, you don’t need that. Number two, you can definitely do it with an act of Congress. But now they’re saying I can do it with just an executive order. Now, how ridiculous–we are the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits? It’s ridiculous. It’s ridiculous–and it has to end."
However, there is one important facet of President Trump's speculations the media shamefully neglects in its pearl-clutching about birthright citizenship: the actual state of the law.

United States v Wong Kim Ark (169 US 649 (1898)) was the case that brought legal clarification to the 14th Amendment's citizenship clause, and the meaning of the pivotal phrase "subject to the jurisdiction". The standard elucidated within Wong Kim Ark is that a child born within the United States of parents with permanent legal residence and a permanent domicile within the United States, can claim citizenship at birth.  Permanent legal residence excludes transient migrants, "birth tourists", and illegal aliens from this class of persons. Wong Kim Ark makes repeated reference to this distinction, and clearly establishes the distinction as relevant in determining upon whom birthright citizenship may be conferred.

The closest we come to a judicial ruling that erases the distinction between children born of legal immigrants vs illegal aliens is Plyler v Doe (475 US 202 (1982)).  In that decision, Justice William Brennan asserted in a footnote to the ruling that there was no discernible difference "between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful".

However, Plyler's concern was not citizenship, but the applicability of laws (and thus the 14th Amendment's stricture for the equal protection of the laws).  Certainly even illegal aliens charged with crimes are liable to arrest and prosecution under US law--in this regard Plyler's observation is almost common-sensical.  Moreover, Brennan's assertion draws upon language within Wong Kim Ark that implies equivalence between the phrases "subject to the jurisdiction" and "within the jurisdiction", yet ignores the repeated use of the term "resident alien".  

The US Customs and Immigration Services uses the term "resident alien" with respect to three categories of persons: Permanent Resident, Conditional Resident, and Returning Resident.  All three categories are categories of LEGAL immigrant status.  An "illegal alien" is not (nor can be understood to be) a "resident alien". 

Thus Brennan's assertion is flatly contradicted both by current US law and regulation as well as by the broader language of Wong Kim Ark.

Where does this leave Trump's proposed executive order?

Intrinsically, executive orders enjoy shaky legal foundations, simply because no executive order can withstand the passage of contravening legislation. If Congress passes a law that negates an executive order, there is no doubt but that the law will prevail.  Thus any executive order drafted by President Trump would, much like President Obama's execrable DACA order, be ever at the whim of subsequent presidents as well as the Congress.

However, the order President Trump has described would be addressing illegal aliens and transient migrants, neither of whom qualify as "resident aliens", which qualification is clearly established by Wong Kim Ark as the essential predicate for birthright citizenship.  Thus, the particulars of the proposed executive order would appear to be in line with existing law and the 14th Amendment, and would amount to little more than a directive to the Departments of Justice and State to stringently apply existing legal standards with regards to acknowledgment of birthright citizenship.  Such an order, while amenable to the legislative acts of Congress, is unquestionably within a President's scope of Constitutional authority to see that the laws are faithfully executed.

Contrary to the media hype, President Trump is operating within the scope of existing law. It is his opponents and the media who are seeking to unilaterally (and illegally) nullify existing law.