River News: Our View

President Donald Trump’s executive order ending birthright citizenship almost assuredly is going to be struck down in the courts, and, quite frankly, it should be.

That’s because, with few exceptions, if you are born on American soil, you are an American citizen, and the language of the constitution’s Fourteenth Amendment makes that indisputably clear. As Reagan-appointed federal judge John Coughenour put it this week, the executive order is “blatantly unconstitutional”: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one.”

Yeah, pretty clear. None of which is to say we believe in birthright citizenship. It needs to be jettisoned, and as quickly as possible. It serves as a huge incentive to illegally come to the United States, to secure safe and legal harbor for those who have no right to be here and who do not deserve it, and it is a significant factor in the historic numbers that have surged across the border.

It’s just going to take a constitutional amendment to end it, not an executive order or even an act of Congress. We suggest the Congress and the states get working on such an amendment right away.

To look at the argument a little closer, and as we report in today’s edition, the Fourteenth Amendment states that “[a]ll 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.”

All that matters to decide the question is a clear understanding of who is subject to the jurisdiction of the United States. Well, a quick look at the debate surrounding the adoption of the post-Civil War amendment resolves the question.

It was clearly aimed at ending citizenship based on race, and it mimicked the Civil Rights Act of 1866, which had stated things only a little differently. That law adjudged that all persons born or naturalized in the United States were citizens of the United States except those under the jurisdiction of a foreign power, that is to say, subject to the laws of another nation, and “Indians not taxed.” In other words, they weren’t under the jurisdiction of the Untied States but of another nation.

Specifically, they were concerned about the children of foreign diplomats who might be born in the U.S. and about Native American tribes, which at the time were under a completely different sovereignty regime than today.

In other words, the law and the amendment, which itself was the result of a lot of horse-trading, simply sought to give freed blacks and their descendants citizenship — it was needed to overturn the pre-Civil War Dred Scott decision denying blacks citizenship — and it also took care of a specific issue about diplomats.

Progressives these days like to think that lawmakers then were visionary in providing what would become an invitation to an open border, but likely no one thought about what unintended consequences there might be a century later.

Still, the language is the language, and the intent is the intent, and it’s hard to argue that it doesn’t mean what it says, that as long as you are subject to U.S. law and not bound to the laws of another nation, tribal or foreign, you deserve U.S. legal rights, including citizenship.

All the case law dating back to the 1880s backs that up, as our story explains, even to this day by Reagan-appointed judges. The Trump administration is pointing to the exception for children of foreign diplomats to try and demonstrate that there are exceptions to the general rule of natural-born citizenship, but in so doing it proves the opposite because those people are in fact subject to the laws of their home nations and not subject to U.S. law, which isn’t true for illegal immigrants.

For example, try to arrest a foreign diplomat for murder. You can’t. Now try arresting an illegal migrant for murder. We don’t a lot, thanks to progressive prosecutors, but we should and we can and sometimes we do.

That’s because illegal migrants are subject to U.S. law. And that also means their children are U.S. citizens.

Again, this is not an endorsement of birthright citizenship. It needs to end. It has outlived its usefulness and is now a danger to the country.

When the 14th Amendment passed, the Civil War had just ended, and all the attending issues surrounding a new population of former slaves made for raw politics. However generally written, the Fourteenth Amendment was first and foremost an attempt to deal with the citizenship rights of former slaves and their descendants and specifically to overturn Dred Scott.

No one was considering what might happen more than century down the road when millions of illegal migrants would pour across the border and threaten the very integrity of our communities.

Let us be clear. That illegal immigration poses an existential threat to our way of life is not based on who the migrants are. It does not matter what race or color they are. It does not matter that most might be industrious and hard-working and law-abiding.

It matters because illegal immigration lets in too many people. We are a nation of immigrants. Immigrants must be welcomed and assimilated. But that welcoming and assimilation must be apportioned so that the nation can absorb their numbers. That’s the point of a system of legal immigration.

Without such a system, the melting pot overflows and burns. The infrastructure cannot be sustained. And, without the vetting of legal migration, open borders do invite in criminals and drug dealers and terrorists and sex traffickers.

After the rawness of Civil War issues died down, birthright citizenship became a popular concept, not just in the United States but throughout the West. It had become a relic without the burning issues surrounding slavery, but it was a cute relic, a way to show the world how welcoming we all were. It was a practical application of the spirit of the Statue of Liberty.

But no more, and other nations have recognized this and begun to end birthright citizenship. Recent research by the Library of Congress identified 94 countries that it says currently have, or previously had but jettisoned, laws granting citizenship by birth, with or without added conditions. 

Of those 94 countries, only 33 have unconditional birthright citizenship. Many others make birthright citizenship conditional on the legal status of the parents, or the age and length of residency in the country.

In recent times, The New York Times has reported, universal birthright citizenship was restricted or abolished in Britain, Ireland, Australia, New Zealand and India. In Ireland, universal birthright citizenship was ended after 79 percent of voters supported a constitutional amendment conditioning citizenship on parents’ residence and history.

All this is happening not least because of illegal immigration. The very future of the nation is imperiled by illegal immigration. That’s the bad news.

The good news is that American voters — and voters in other western countries — know the borders need to be closed and that ending birthright citizenship is one way toward that end.

The Trump EO is bound to be popular but likely headed to defeat, though you never know. Still, the Supreme Court would have to overturn the whole canon of case law and read a tortured history to do so.

A better way is the aforementioned constitutional amendment, which should be pursued quickly, like in the next two years, passed by Congress, and sent to the states for ratification. Strike while the iron is hot.

Progressives should also hope that is how birthright citizenship ends. Because the other alternative is to mercilessly seal the border, using the military to secure the border and mass deportations and whatever other measures need to be taken.

All that is upsetting in any circumstance, and extends human suffering, but if that is what it takes, so be it. 

Ending incentives to migrate in the first place is a more effective and humane option. Ending birthright citizenship, building a wall, gaining the cooperation of Mexico, including a robust Remain-In-Mexico policy, and of other nations could avoid more human tragedy.

At the end of day, though, the United States of America must do what it must to protect its citizens and its national identity. An executive order is only the first arrow.

There’s lots more in the quiver.