President Trump has vowed to go after birthright citizenship on his first day in office. He's going to lose, but in a way that may well provide cover for other controversial immigration measures
I've read many analyses over the past few days discussing the (un)likelihood of any attempt by Trump to nullify birthright citizenship, but I find this One First article the most in-depth and compelling argument as to why it should fail.
Instead of focusing on an issue that is based entirely in xenophobia and is a priority to no one but Donald Trump, I think he would better serve our nation by tackling some of the truly grave problems that are affecting huge numbers of Americans, like the dire need for massive health care reform or addressing the obscene wealth gap in our country.
Since the Supreme Court ruled in Trump v. Anderson that Sec 3 of the 14th Amendment required Congressional authorization to enforce a presidential candidate's disqualification, why couldn't it rule the same regarding birthright citizenship in Article 1?
So if "appropriate legislation" is now *required* for the enforcement of *any* section of the 14th Amendment, does that mean that the Supreme Court can now interpret any existing enabling legislation as inapplicable? Or, if "applicable," can Congress repeal such enabling legislation and void any section?
The revolutionary implications of the Anderson decision--that any amendment *requires* (not just permits) enabling legislation opens a vast field for constitutional re-interpretation, doesn't it?
Perhaps. But my question was also whether 8 USC 1401--or any enabling law--could be repealed and thus make Section 1's guarantee of birthright citizenship void. I think it's extraordinarily dangerous to make any amendment, or any section, subject to further Congressional action. It would eliminate the need to rule on even the original meaning of the words if the Court could decide that the legislative conditions to enable it had not been met.
In my reading, this is what they ruled in Anderson: putting the entire obligation to disqualify a candidate on Congress. Other amendments to the Constitution contain a similarly worded article granting permission to enact enabling legislation. The Court majority wanted to make a controversial case go away, putting the onus to solve it on a politically divided Congress, and opening up similar arguments for other amendments.
Trump may believe that he has the power to end birthright citizenship but I don't think he's got a lot of true believers standing in line behind him. His administration will let him sign any EO he wants, and then, when it's stopped in the courts and the Supreme Court refuses certiorari, they'll blame the Deep State. I do agree that they'll probably try to pass other legislation that will do harm in regards to immigration.
A court that didn't hesitate, in Dobbs, to become the first ever to revoke a previously recognized constitutional right, or to turn Justice Robt. Jackson's concurrence in Youngstown Sheet & Tube v. Sawyer (1952) upside down in an attempt to gain support for its conferral of broad prosecutorial immunity on Trump, might not hesitate to do his bidding on birthright citizenship either. But thanks for this informative discussion.
It is much harder for the so called" textualist originalists" currently on the Court to do to Birthright Citizenship what they have done to Abortion. First, here the Constitution speaks directly to the subject in unambiguous language. Second, there is abundant legislative history as to what Congress and the States intended and they plainly intended Birthright Citizenship in all the cases that are relevant to the current dispute. It is true that Scalia insisted that legislative history is irrelevant but he is dead. Finally, Congress did not impose immigration restrictions until the 1880s,well after passage of the 13th-15th Amendment which means that even if the Court accepts the specious Thomas thesis that legislation to be read as it was understood at the time of enactment , there was no such thing as undocumented status at the time of enactment and nothing to carve out from otherwise eligible Birthright Citizenship!
A good, rational analysis, but with regard to overturning precedent and reaching irrational conclusions, don't forget the old legal maxim, "Where there's a will, there's a way."
Yes, and the departure from the clear text and precedent and from Scalia jurisprudence ( if you want to call it that) could be explained away on some frivolous grounds ---Judge Bazelon's famous "The matter does not appear to me now as it appears to have appeared to me then " But: there are increasingly signs that lower courts and some state governments are not going to accept or respect decisions which are purely political. The Hawaii Supreme Court just issued a decision on gun licensing which not even politely disposes of Thomas' bonkers theories of the Second Amendment--- The Hawaiian Chief Justice said that the Constitution is not a "suicide pact" and the Supremes did not overturn the Hawaiian Decision.
I think Professor Vladeck's concern that the MAGAs will find some other, less direct way to justify their blind hostility to immigrants is a greater risk than the denial of Birthright Citizenship by the current Supreme Court.
It's worth noting as well that there's no evidence even the Court's conservatives even agree with the critique of birthright citizenship. Thomas endorsed birthright citizenship in at least two concurrences, Vaello Maduro and Students for Fair Admission. And Gorsuch hasn't specifically commented on it, but he called the Insular Cases (which denied rights to subjects of the United States government in overseas territories) racist and wrongly decided.
A lot of people engage in no other reasoning other than "the Court did Dobbs, therefore they are capable of anything". But the critique of birthright citizenship is actually a fringe position EVEN ON THE RIGHT. John Eastman advocated it for decades but he couldn't get anyone to agree with him. It's not like conservative law professors are publishing tons of papers or even writing opinion pieces saying this is an incorrect theory. My impression is that the vast majority of the conservative legal movement thinks the Constitution means what it says here.
I did not realize that Eastman had been raising this idea for a long time. I thought he had cooked it up to disqualify Kamala Harris. She was born in the US and her parents had come here under Student Visas but he claimed tht at least one of them had stayed in the US after the Student Visa expired and that meant that Kamala was undocumented in Eastman's view. Even better is that the Conservative Legal Movement has been ignoring this tortured legal reasoning a part from politics.
I published a piece in 2003 in the LA Daily Journal that was commissioned as a rebuttal to an Eastman piece on the issue (at the time, Eastman was arguing the Supreme Court should decide Hamdi v. Rumsfeld on the ground that Hamdi, born in this country to foreign parents, wasn't a citizen). It was his obsession, for decades.
Thank you for this important and timely analysis.
I've read many analyses over the past few days discussing the (un)likelihood of any attempt by Trump to nullify birthright citizenship, but I find this One First article the most in-depth and compelling argument as to why it should fail.
Instead of focusing on an issue that is based entirely in xenophobia and is a priority to no one but Donald Trump, I think he would better serve our nation by tackling some of the truly grave problems that are affecting huge numbers of Americans, like the dire need for massive health care reform or addressing the obscene wealth gap in our country.
Question:
Since the Supreme Court ruled in Trump v. Anderson that Sec 3 of the 14th Amendment required Congressional authorization to enforce a presidential candidate's disqualification, why couldn't it rule the same regarding birthright citizenship in Article 1?
So if "appropriate legislation" is now *required* for the enforcement of *any* section of the 14th Amendment, does that mean that the Supreme Court can now interpret any existing enabling legislation as inapplicable? Or, if "applicable," can Congress repeal such enabling legislation and void any section?
The revolutionary implications of the Anderson decision--that any amendment *requires* (not just permits) enabling legislation opens a vast field for constitutional re-interpretation, doesn't it?
Or am I, a non-lawyer, just being factitious?
It seems like this objection was anticipated discussion of 8 USC 1401.
Perhaps. But my question was also whether 8 USC 1401--or any enabling law--could be repealed and thus make Section 1's guarantee of birthright citizenship void. I think it's extraordinarily dangerous to make any amendment, or any section, subject to further Congressional action. It would eliminate the need to rule on even the original meaning of the words if the Court could decide that the legislative conditions to enable it had not been met.
In my reading, this is what they ruled in Anderson: putting the entire obligation to disqualify a candidate on Congress. Other amendments to the Constitution contain a similarly worded article granting permission to enact enabling legislation. The Court majority wanted to make a controversial case go away, putting the onus to solve it on a politically divided Congress, and opening up similar arguments for other amendments.
Maybe our learned interlocutor has an opinion....
I did not receive last Monday's (12-9) edition. (It is not in junk folder) Am I the only one? A resent link would be appreciated. Thanks
I haven't heard of trouble from others. FWIW, every post is archived here:
https://www.stevevladeck.com/archive
Monday's, specifically, is here: https://www.stevevladeck.com/p/112-acting-officers-and-the-appointments
Trump may believe that he has the power to end birthright citizenship but I don't think he's got a lot of true believers standing in line behind him. His administration will let him sign any EO he wants, and then, when it's stopped in the courts and the Supreme Court refuses certiorari, they'll blame the Deep State. I do agree that they'll probably try to pass other legislation that will do harm in regards to immigration.
Another exceptional article. Thank you.
Very informative article
A court that didn't hesitate, in Dobbs, to become the first ever to revoke a previously recognized constitutional right, or to turn Justice Robt. Jackson's concurrence in Youngstown Sheet & Tube v. Sawyer (1952) upside down in an attempt to gain support for its conferral of broad prosecutorial immunity on Trump, might not hesitate to do his bidding on birthright citizenship either. But thanks for this informative discussion.
It is much harder for the so called" textualist originalists" currently on the Court to do to Birthright Citizenship what they have done to Abortion. First, here the Constitution speaks directly to the subject in unambiguous language. Second, there is abundant legislative history as to what Congress and the States intended and they plainly intended Birthright Citizenship in all the cases that are relevant to the current dispute. It is true that Scalia insisted that legislative history is irrelevant but he is dead. Finally, Congress did not impose immigration restrictions until the 1880s,well after passage of the 13th-15th Amendment which means that even if the Court accepts the specious Thomas thesis that legislation to be read as it was understood at the time of enactment , there was no such thing as undocumented status at the time of enactment and nothing to carve out from otherwise eligible Birthright Citizenship!
A good, rational analysis, but with regard to overturning precedent and reaching irrational conclusions, don't forget the old legal maxim, "Where there's a will, there's a way."
Yes, and the departure from the clear text and precedent and from Scalia jurisprudence ( if you want to call it that) could be explained away on some frivolous grounds ---Judge Bazelon's famous "The matter does not appear to me now as it appears to have appeared to me then " But: there are increasingly signs that lower courts and some state governments are not going to accept or respect decisions which are purely political. The Hawaii Supreme Court just issued a decision on gun licensing which not even politely disposes of Thomas' bonkers theories of the Second Amendment--- The Hawaiian Chief Justice said that the Constitution is not a "suicide pact" and the Supremes did not overturn the Hawaiian Decision.
I think Professor Vladeck's concern that the MAGAs will find some other, less direct way to justify their blind hostility to immigrants is a greater risk than the denial of Birthright Citizenship by the current Supreme Court.
A ray of light--let's hope.
It's worth noting as well that there's no evidence even the Court's conservatives even agree with the critique of birthright citizenship. Thomas endorsed birthright citizenship in at least two concurrences, Vaello Maduro and Students for Fair Admission. And Gorsuch hasn't specifically commented on it, but he called the Insular Cases (which denied rights to subjects of the United States government in overseas territories) racist and wrongly decided.
A lot of people engage in no other reasoning other than "the Court did Dobbs, therefore they are capable of anything". But the critique of birthright citizenship is actually a fringe position EVEN ON THE RIGHT. John Eastman advocated it for decades but he couldn't get anyone to agree with him. It's not like conservative law professors are publishing tons of papers or even writing opinion pieces saying this is an incorrect theory. My impression is that the vast majority of the conservative legal movement thinks the Constitution means what it says here.
I did not realize that Eastman had been raising this idea for a long time. I thought he had cooked it up to disqualify Kamala Harris. She was born in the US and her parents had come here under Student Visas but he claimed tht at least one of them had stayed in the US after the Student Visa expired and that meant that Kamala was undocumented in Eastman's view. Even better is that the Conservative Legal Movement has been ignoring this tortured legal reasoning a part from politics.
I published a piece in 2003 in the LA Daily Journal that was commissioned as a rebuttal to an Eastman piece on the issue (at the time, Eastman was arguing the Supreme Court should decide Hamdi v. Rumsfeld on the ground that Hamdi, born in this country to foreign parents, wasn't a citizen). It was his obsession, for decades.
Trump had no trouble creating, “Little Russia”, in Florida.
Russian oligarchs rented Trump properties, attended birthing classes, gave birth to American citizens.
Of course they’re wealthy and white so that’s just fine!
“Russian 'birth tourists' are flocking to Miami, and Trump condos, to give birth to American citizens” :
https://theweek.com/speedreads/748344/russian-birth-tourists-are-flocking-miami-trump-condos-give-birth-american-citizens