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CAN “BIRTHRIGHT CITIZENSHIP” BE ABOLISHED BY ANY BRANCH OF GOVERNMENT?
by Sharon Rondeau
(Aug. 27, 2018) — Last week, an article at Salon.com came to our attention whose focus is the 14th Amendment and so-called “birthright citizenship.”
Passed in 1868 during Reconstruction, the constitutional amendment contains five sections, with Section 1 being the most familiar to the public. That section reads:
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Salon article was reposted from its original source at the Niskanen Center, which argued that the premise that anyone born on U.S. soil is a U.S. citizen as a matter of “law.”
The Niskanen Center’s title of the article is “Birthright Citizenship is Not a Legal Assumption; It’s the Law,” whereas Salon changed it to address Carlson specifically: “No, Tucker Carlson: Birthright citizenship is not just an ‘assumption,’ and Trump can’t undo it.” Salon also added the subtitle, “Despite what right-wing bigots claim to believe, Donald Trump can’t change the meaning of the 14th Amendment.”
The apparent catalyst for the article was a recent edition of “Tucker Carlson Tonight” which discussed a July 18 Washington Post editorial by former Trump National Security Council spokesman Mark Anton stating that Trump, or presumably any president, could issue an executive order negating the awarding of “birthright citizenship” to children born in the U.S. to illegal-alien parents.
In his column, Anton wrote, in part:
An executive order could specify to federal agencies that the children of noncitizens are not citizens. Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?
Judges faithful to their oaths will have no choice but to agree with him. Birthright citizenship was a mistake whose time has gone.
Within Anton’s article is a video inserted by The Washington Post which, citing the 1898 Wong Kim Ark decision by the U.S. Supreme Court, misinforms that “the Supreme Court ruled that citizenship belonged to everyone born on American soil.” Rather, the decision included the fact that Wong’s parents, at the time of his birth and until 1890, when they departed permanently for China, were “domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid.”
The WaPo video is titled, “The fight for birthright citizenship in America” and is placed directly under Anton’s statement, “I refer, here, to ending birthright citizenship.”
Although correctly stating that Wong began in 1895 after he returned, for the second time, to San Francisco from a visit to China, the caption below the video states that the high court’s decision was issued in “1989.” Published well over a month ago, The Post has had more than ample opportunity to correct its error.
On August 31, 2015, two and one-half months after Donald Trump declared himself a presidential candidate, The Washington Post published an article titled, “Donald Trump meet Wong Kim Ark, the Chinese American cook who is the father of ‘birthright citizenship.'” [sic]
In his August 15 discussion of birthright citizenship, Carlson interviewed columnist and Stanford University Hoover Institution Senior Fellow Victor Davis Hanson, asking him why the U.S. grants citizenship to anyone born within its boundaries if the Constitution does not “mandate” it, to which Hanson responded, “I think it’s because the 14th Amendment following the Civil War was aimed to address the problems of post-Civil-War slavery. Nobody really who drafted that law dreamed that we would have four million people born to foreign nationals, most of whom were here illegally, who would be granted citizenship. So it’s kind-of murky, and we have about 150 years of jurisprudence that can’t quite adjudicate what they meant…”
Carlson shifted to positing that “illegal” behavior for illegal aliens is often rewarded, in his view, using identity theft as an example. “I can tell you that if I have a false ID and I use a false ID or a double identity, that’s a felony and my career is ruined,” Hanson responded. “Yet the IRS said over the last four or five years that there was one million people here illegally who had a false ID and used that false ID; it’s identity theft…” [sic]
On Friday, The Post & Email spoke with New Jersey attorney Mario Apuzzo about the points made in the Salon/Niskanen Center article and whether or not, in his view, a president could issue an executive order with the intent of declaring his interpretation of the 14th Amendment’s citizenship section.
The case wended its way through the courts to the U.S. Supreme Court, which declined to schedule oral argument.
In 2016, Apuzzo represented plaintiff and presidential candidate Victor Williams in challenging Sen. Ted Cruz’s claim that he is a “natural born Citizen” eligible to the presidency of the United States. Cruz, who was born in Canada to a then-Cuban-citizen father, ultimately was defeated in the Republican presidential primaries by then-businessman Donald J. Trump.
To begin the interview, we asked Apuzzo whether or not modern-day Americans are misinterpreting the meaning of the clause “subject to the jurisdiction thereof” found in the first sentence of the 14th Amendment. “Does it all hinge on that?” we asked.
“It’s a complex issue,” was Apuzzo’s initial response. “Trying to understand the meaning of those words is very, very involved. There really is no ‘right’ answer, because it all depends on context. You can make those words mean anything you want. If you study the debates on the 14th Amendment, which are in the Congressional Globe, you’ll see how the senators don’t agree with each other as to what it means. Then, they talk about ‘in the sense of that particular constitution, this is what it means.’
For example, if you look at Wong Kim Ark, the court said, “It means ‘subject to the laws.'” But then if you read the debates, it says that anybody is subject to the laws, even Indians. The debate there was American Indians and whether or not they should be excluded. Senator Doolittle put forward an amendment to the amendment saying that you have to put the language in there, ‘excluding Indians not taxed.’ The other senator, Sen. Howard, who had put forward that particular citizenship clause, was joined by others, one of whom was Sen. Trumbull, and they all said, “Oh, no, we don’t need that language. It’s clearly understood.” Well, it’s clearly not understood.
So they went on and on, and Trumbull said that it means ‘subject to the complete jurisdiction.’ It still doesn’t really tell you what it means. Then there’s further discussion that in this sense of the Constitution, the Indians are not subject to the jurisdiction. So the whole thing is really up in the air; it is what you want to make it to be.
When we asked if the discussions and differing viewpoints of today are little different from the debates of 1868, Apuzzo responded:
What drives the whole thing is policy, and what drives policy? politics. And what drives politics? You can get into all kinds of things driving politics: economics, power; you want to share things with others or you don’t want to share it with others; so the whole thing comes down to politics.
I suspect there was a lot more going on in Congress than what is in the records. If you look at the Civil Rights Act of 1866, it says ‘not subject to any foreign power,’ and it also says, ‘excluding Indians not taxed.’ Later on they say that the Indians are ‘subject to a foreign power,’ so why did they have to add ‘excluding Indians not taxed’? So clearly, when they said, ‘not subject to any foreign power,’ they meant somebody else other than the Indians. They’re not telling us that, but I think there’s a clue in the debates that they really were targeting Chinese in California.
The Post & Email: The subtitle of the Salon version of the article reveals that it is posted from a particular point of view. From my standpoint, a major problem today in the media is that almost everything is expressed as an opinion in an attempt to influence the public.
Atty. Apuzzo: It all comes down to politics, and then you make whatever you want to make of it based on your motivation. You spin it the way you want; you include certain facts and don’t include others, whether it’s conscious or subconscious. Some of it is very conscious and very devious; some of it is unconscious.
The question of citizenship is absolutely loaded with policy and politics. You want people you like to become citizens, people who share the same values as you, who will assimilate — you don’t want people to become citizens who violated your laws, who are a threat to your national security, who have no allegiance. That was the idea about the Chinese; they thought they had no connection to the country. It’s shocking if you read the debates – one senator said that when Chinese people died here, their bones were brought back to China on ships…that’s how little connection they thought they had to the country.
The point I think we have to get to is illegal aliens. All this talk about parsing the words – does it have an “or” there, which is in the Anton article – it was his own personal opinion. You can go back to Edward Erler, John Eastman and others, but the one they’re really trashing is Anton. That really doesn’t amount to anything. What it comes down to is politics: should we grant citizenship to the children of people who come here legally and overstay or who come here illegally? It’s a policy question.
When you think about ‘subject to the jurisdiction’: First of all, those who just came across the border entered without permission, and the ones who overstay do so without permission. We have the power to deport those people. Think about it from a policy standpoint: We can deport the parents but give citizenship to their children? It doesn’t make sense. Then why should we reward anybody who comes here or stays here illegally with citizenship for their children? What is the benefit vs. the burden for the nation from doing that?
I think the issue is wide-open for an honest debate as to whether or not the Wong Kim Ark decision should be extended to illegal aliens. The U.S. government said he was not a U.S. citizen because he was born to alien parents, which also raises the question about “natural born Citizen.”
You have “natural born Citizens” and you have citizens. There was no question as to what a natural born Citizen was, but the question was, “What is a citizen?” You have to have citizens before you can have natural born Citizens. The big group is citizens, and certain ones are natural born citizens. Natural born Citizens are those born in the country to parents who are citizens. But the Congress struggled with the question of non-citizen parents during the 14th Amendment debates. They said, “We don’t have a definition of a citizen.” They didn’t say, “We don’t have a definition of ‘natural born Citizen.'” That wasn’t the problem. What do you do with people born here whose parents are not citizens? That was the question; that was the problem.
Of course, Minor also told us that that was in question; they said they had “doubt” under the 14th Amendment as to who was a citizen of the United States, but they said, “We don’t have to answer that because here, we have a natural born Citizen, born in the country to citizen parents.”
If you read the 14th Amendment debates, they ask, “What is subject to the complete jurisdiction of the United States?” and the answer was “legislative, judicial and executive.” That’s just on the “government” part. You also have military, political — all these powers going on. But within the government itself, the executive has just as much right to assert jurisdiction over something within the law. He could say, “This is my interpretation…” just as in Wong Kim Ark; that was the government saying he wasn’t a citizen. It wasn’t a court; it wasn’t Congress; it was the executive. And what happened? It went to the Supreme Court.
So what’s my point? If we want to get an answer on the application of citizenship to children of people who came in illegally or overstayed and became illegal or they have no tie to the country, President Trump can sign the executive order, somebody can take it to the Supreme Court, and then you have a ruling on the question. That’s a simple way to resolve it.
The same thing happened with Wong. Nobody said, “The government doesn’t have the power to do this.” That issue wasn’t even discussed. The question was whether or not he was a citizen. Even if you say the president doesn’t have the power, you still have to go to the court. So you get it to the Supreme Court that way. That’s the fastest, easiest way to do this.
Nobody is going to fault Trump, as he has plenty of precedent, plenty of debate and doubt in this whole issue because Wong Kim Ark did not address the question of “illegal aliens.” There was no “illegal alien” at that time. There were no immigration visas, but now we have a different environment, and the laws always have to change according to your environment.
Again, the context, the politics, the policy — it’s a different context now of people coming here and violating our laws. The whole thing is so ironic. You can become a citizen if you’re subject to our laws, but you just violated our laws! So it’s contradictory.
Editor’s Note: Part 2 of our interview with Atty. Apuzzo will be published later this week.