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Trump Sends A Birthright Citizenship Trial Balloon


I had heard rumors that this Executive Order was being considered, and as per usual Jonathan Swan is on it on Axios’s new HBO show.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.

When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,”

Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.) “It’s in the process. It’ll happen … with an executive order.”

The president expressed surprise that “Axios on HBO” knew about his secret plan: “I didn’t think anybody knew that but me. I thought I was the only one.” …

The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:

“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.” Few immigration and constitutional scholars believe it is within the president’s power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.

Senator Lindsey Graham told ABC News he plans to introduce legislation along the same lines as the proposed executive order from President Trump. “Finally, a president willing to take on this absurd policy of birthright citizenship,” he said.

One aside: it seems clear this is not the roll-out those backing this idea intended. The President seems genuinely surprised that Swan knew about this idea being floated at the White House Counsel’s office. That is interesting.

As a legal matter, you ought to know by now given the fact that we’ve run articles on both sides of this issue at The Federalist, this question is in dispute thanks to a handful of legal scholars on the right who disagree with the overwhelming majority of legal scholars, politicians, and, most importantly of all, the president’s own judicial appointees on this question. (James Ho was not yet a lifetime appointee federal appeals judge when he wrote this – Trump appointed him.) An even tinier portion believe it can be done via executive action instead of via Constitutional Amendment or act of Congress. But leave the legal debate to the lawyers, and to non-lawyer Michael Anton, and just look at the practical and political questions raised by this assuming it is not simply a midterm rallying theme – akin to a mythical middle class tax cut.

Interestingly enough, ending birthright citizenship is opposed by immigrant hardliners like Mark Krikorian, because he believes it is both impractical and has longterm negative ramifications. On the legal question, Krikorian believes the birthright citizenship issue would have to be decided by the Supreme Court or a Constitutional amendment. But he wouldn’t want to change that regimen, because of the negative outcomes it would create with stateless children representing a semi-permanent underclass.

Consider the practical outcomes of this after half a decade: Ending birthright citizenship would make the United States more like the rest of the world – it would also end an incentive for immigrants to come here, which is of course the actual goal of most of the people advancing this argument. But what it will not do is provide any incentive for people already here illegally to leave. Instead they will stay, and have children anyway.

Rather than the previous agreement – where we owe these children the protections of the Constitution, and they owe their allegiance to our flag – there is no such commitment made. They will be stateless, as illegal in their presence in the United States as their parents, with no nation to call home.

In our current understanding of the 14th Amendment and birthright citizenship, the existence of a permanent underclass of native born non-citizens ends at the first generation. Their children are as American as you, and integration into American life begins in a way that discourages the creation of multigenerational non-citizen ghettos. In the absence of that understanding, say hello to a massive underclass of people and families with a greater incentive to form exactly the kind of hardened ethnic conclaves we see in Europe – and the outcomes and risks that come with such ghettos. I wonder if they will put one in Santa Monica.

Managing a permanent and significant non-citizen population is messy stuff historically and today, and Krikorian and other smart immigration policy wonks know it – that’s why border enforcement, skills based immigration, and eVerify have been their focus, not this. The short term political ramifications would serve as a serious boost to the demography as destiny crowd. The longer term political ramifications here would be obvious and severe: an inevitable and powerful push for a mass and total amnesty for these multi-generation non-citizens that would come the instant that Republicans no longer are in power.

Polls show Republican voters consistently support a citizenship solution for the Dreamers, and that this would effectively create millions more. The pressure to grant mass amnesty would be a thousand times as heavy in an environment where the semi-permanent underclass has no hope of integration for their children, and it would inevitably eventually succeed – creating a cohort of millions of voters with a loyalty to those who backed it.