Revenge of the Pen and the Phone

Few sections of the U.S. Constitution are richer or more uplifting than the “Citizenship Clause.” My eyes tear up a bit just reading the words:

“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 14th Amendment fulfilled the Founders’ original promise of freedom for all, and enshrined the bedrock principle of equality before the law.

This first section was implemented to reverse the Dred Scott Supreme Court decision, which infamously denied citizenship to African Americans — even to freed slaves. Today, it is also widely understood to guarantee “birth right” citizenship to the children of immigrants — undocumented or otherwise. This right was first defended by the Republicans of Lincoln’s era and affirmed by the Supreme Court in 1898 when a case arose questioning the citizenship of a child of Chinese immigrants.

However, President Trump has turned an open-and-shut question of constitutionality into a political football — declaring that he will end birth right citizenship with the stroke of a pen. Executive orders, though not mentioned as a power granted in the Constitution, have increasingly been seen as a way for the President to do an end-run around a gridlocked Congress.

Nowhere has the debate over executive orders been more contentious than on the topic of immigration. In 2014, Barack Obama took the lack of bipartisan immigration reform as his cue to offer temporary legal status and an indefinite reprieve from deportation to the roughly 11 million undocumented immigrants living in the U.S. at the time. He did so via executive order. Libertarians warned of the dangerous precedent this would allow for future presidents. With Trump’s threat of an executive order to end birth right citizenship, we are seeing this fear confirmed.

Sheldon Gilbert, VP for Content and Development and a Senior Fellow for Constitutional Studies with the National Constitution Center, joins the show to discuss whether Trump’s plan is constitutional (hint: it’s not).

In the spirit of intellectual honesty, Gilbert accurately summarized the case against birth right citizenship for the Daily Mail: If you do not owe allegiance to the United States, some argue, you do not have citizenship. Justice Antonin Scalia was sympathetic to this argument — saying that those here illegally are not bound by this allegiance, even though they are still compelled to follow the laws of the U.S. However, many scholars from both sides of the aisle have pointed out the mental acrobatics required for this interpretation to hold up. Many slaves were brought here “illegally” before the Civil War, yet these were exactly the people that Section I of the 14th Amendment sought to naturalize.

Here’s a preview of my take:

I often ask people who oppose illegal immigration what part they object to — the “illegal” part, or the “immigrant.” If it is the illegal part, there is a simple solution: the U.S. should naturalize any and all undocumented immigrants who are willing to pledge their allegiance to the flag. If it is the “immigrant” part, then I have little more to say to the person, since the U.S. is a country built and constantly renewed by immigrants.

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