Jonathan Swan, Axios: “On immigration, some legal scholars believe you can get rid of birthright citizenship without changing the Constitution.”
President Trump: “With an executive order.”
Swan: “Have you thought about that?”
Swan: “Tell me more.”
Trump: “It was always told to me that you needed a Constitutional amendment. Guess what? You don’t. . . . You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order. Now, how ridiculous — we’re the only country in the world where a person comes in, has a baby and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.”
— Trump interview with Axios, Oct. 30, 2018
“Many Gang Members and some very bad people are mixed into the Caravan heading to our Southern Border. Please go back, you will not be admitted into the United States unless you go through the legal process. This is an invasion of our Country and our Military is waiting for you!”
— Trump tweet, Oct. 29, 2018
Laura Ingraham, Fox News: “What’s the military going to be able to do? Obama and Bush both sent the National Guard. It’s had no effect.”
Trump: “But they’re not me. This is the — I’m sending up the military. This is the military. And they’re standing there and one thing that we’ll have. . . . When they are captured, we don’t let them out.”
— Exchange on “The Ingraham Angle” on Fox News, Oct. 29, 2018
Trump talks a big game on immigration, but there’s less here than meets the eye.
The president claims he can end birthright citizenship in the United States simply by signing an executive order. That’s an extraordinary claim — never tested in the courts and contradicted by the Justice Department.
“You cannot end birthright citizenship with an executive order,” House Speaker Paul D. Ryan (R-Wis.) said hours after Trump’s announcement.
Trump also says active-duty military troops will be “waiting” at the border for the migrant caravan from Central America in case anyone attempts to cross into the United States; he implied on Fox News that these migrants could be “captured” by the military.
But the 5,200 troops deploying to the border will not be apprehending migrants. The Defense Department says these troops will be operating under legal restraints and providing a range of support services to U.S. Customs and Border Protection, the agency that patrols the Rio Grande and carries out border apprehensions.
We spend so much time fact-checking Trump’s claims about immigration, it’s not really a surprise to see this macho talk a week out from the midterm elections. Let’s dig in.
Trump’s promised executive order would be challenged in the courts and likely enjoined until the case was resolved. The president’s authority to send troops to the border is not in question, although he’s wrong to imply that active-duty military forces would be detaining or capturing people attempting to cross into the United States.
As for the president’s claim that only the United States offers birthright citizenship, it’s flat-out wrong, as we’ve previously reported. Thirty-three countries have similar laws, including Canada and Mexico.
Neither the White House nor the Defense Department responded to our questions.
The 14th Amendment was adopted in 1868, repudiating the Supreme Court’s 7-to-2 decision in Dred Scott v. Sandford, an 1857 ruling that denied citizenship to people of African descent born in the United States.
The first sentence of the amendment seems pretty clear, but there are quibbles about its meaning because someone stuck a vague clause in the middle.
“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,” the amendment says.
The court did not say whether the same right extended to the children of undocumented immigrants. (It wasn’t a thing in 1898.) However, the justices stressed that the 14th Amendment was broadly worded, and they listed only a few exceptions to birthright citizenship, such as the children of foreign ministers or of hostile armies on American turf.
“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country,” Justice Horace Gray wrote for the court. That right covers “all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
Then, in the 1982 case Plyler v. Doe, the court said Texas could not exclude the children of undocumented immigrants from public schools. The Supreme Court added that “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
In 1995, the Justice Department’s Office of Legal Counsel rejected the idea that Congress could restrict birthright citizenship through legislation (never mind an executive order). Birthright citizenship is in the Constitution, so the only way to change it is by constitutional amendment, then-Assistant Attorney General Walter Dellinger wrote and testified to Congress:
“The phrase ‘subject to the jurisdiction thereof’ was meant to reflect the existing common law exception for discrete sets of persons who were deemed subject to a foreign sovereign and immune from U.S. laws, principally children born in the United States of foreign diplomats, with the single additional exception of children of members of Indian tribes. Apart from these extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States. And, as consistently recognized by courts and Attorneys General for over a century, most notably by the Supreme Court in United States v. Wong Kim Ark, there is no question that they possess constitutional citizenship under the Fourteenth Amendment.”
He’s not alone. “Birthright citizenship is guaranteed by the Fourteenth Amendment,” James C. Ho, whom Trump later appointed to the U.S. Court of Appeals for the 5th Circuit, wrote in a 2006 law review article. “That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
“Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” Ho wrote in a 2011 op-ed in the Wall Street Journal.
However, the Supreme Court could “revisit its own precedent in Wong Kim Ark and rule that children of noncitizens are not birthright citizens,” Martha S. Jones, a historian at Johns Hopkins University and the author of “Birthright Citizens: A History of Race and Rights in Antebellum America,” wrote on Twitter.
“It would be a departure from precedent, but it is possible,” she said. Alternatively, the court could draw a distinction between the children of legal residents and those of undocumented immigrants to resolve the case in Trump’s favor.
“My view is that this sort of wholesale or categorical exclusion is contrary to the spirit of the 14th Amendment, which aimed to expand and open a way for citizenship, especially for those who might otherwise be denied because of racism,” Jones added. “The case being former slaves.”
Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for tighter immigration policies, said he suspected the Supreme Court would overturn Trump’s executive order. Even that would be a good result, since it would settle the debate once and for all, he said.
“I’m just saying that this is ambiguous. It’s not obvious,” Krikorian said. “These issues literally did not exist when this amendment was drafted and approved. The question is what does the exception mean?”
Krikorian said one of his foremost concerns was “birth tourism,” or the practice of some parents of traveling to the United States to give birth, secure U.S. citizenship for their children and then raise those children in their home countries.
“Those kids do not grow up as Americans,” he said. “There’s nobody who’s for that. Whereas the kid of an illegal alien, who goes to school every day, says the Pledge of Allegiance, that kid is an American. That’s a pretty sympathetic situation.”
(There’s no official estimate for birth-tourism cases. The Centers for Disease Control and Prevention in 2012 estimated that about 8,000 women, accounting for less than 1 percent of annual U.S. births, gave a foreign address when filling out birth certificate paperwork; CIS in 2015 produced a rough estimate of 36,000 babies born to foreign nationals per year.)
The Migration Policy Institute says that “birthright citizenship is not what drives illegal immigration” and that “most legal experts are clear that repeal would require a constitutional amendment."
“Working with researchers at Pennsylvania State University, the Migration Policy Institute (MPI) has found that ending birthright citizenship for U.S. babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7 million people by 2050,” Michael Fix, a fellow and former president of the institute, wrote in 2015.
“The 14th Amendment provides for birthright citizenship,” Ted Cruz (R-Tex.) said in a 2011 interview when he first ran for Senate. “I’ve looked at the legal arguments against it, and I will tell you, as a Supreme Court litigator, those arguments are not very good. As much as someone may dislike the policy of birthright citizenship, it’s in the U.S. Constitution. And I don’t like it when federal judges set aside the Constitution because their policy preferences are different. And so, my view: I think it’s a mistake for conservatives to be focusing on trying to fight what the Constitution says on birthright citizenship. I think we are far better off focusing on securing the border.” (Cruz had flip-flopped by 2015, and Trump took credit for it on Twitter.)
Military on the border
The Trump administration is deploying 5,200 active-duty troops to the southern border by the end of the week, because a caravan of nearly 3,500 Central American migrants slowly working its way through Mexico poses a threat, according to Trump and other administration officials.
That’s in addition to the 2,000 National Guardsmen already at the border. (And there’s another caravan of 3,000 migrants trailing the first caravan.)
For perspective, the 7,200 troops deployed to the border are about equal to the U.S. military presence in Iraq (5,200 troops) and Syria (2,000 troops) as of August.
When Fox News anchor Laura Ingraham asked Trump what the point was, as Presidents George W. Bush and Barack Obama both sent the National Guard to the border and it had “no effect,” Trump said things would be different now that he’s calling the shots. “When they are captured, we don’t let them out,” he said.
This is misleading. The Posse Comitatus Act of 1878 restricts what the U.S. Armed Forces can do to enforce domestic policies, including immigration laws.
“The armed forces do not appear to have a direct legislative mandate to protect or patrol the border or to engage in immigration enforcement,” according to an April 2018 report by the nonpartisan Congressional Research Service.
However, the Armed Forces can provide indirect support, the CRS report added. They can “share information collected during the normal course of military operations; loan equipment and facilities; provide expert advice and training; and maintain and operate equipment,” for example.
“For federal law enforcement agencies, military personnel may be made available to maintain and operate equipment in conjunction with counterterrorism operations or the enforcement of counterdrug laws, immigration laws, and customs requirements,” the CRS found. “Military personnel are permitted under this authority to maintain and operate equipment only for specific purposes, including aerial reconnaissance and the detection, monitoring, and communication of air and sea traffic, and of surface traffic outside the United States or within 25 miles of U.S. borders, if first detected outside the border.”
What the Armed Forces cannot do is detain or frisk migrants, according to a federal law that bars “direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
Sarah Pierce, an analyst at the Migration Policy Institute, said she was “very certain that they won’t be able to arrest any immigrants or conduct physical enforcement.”
But she added that “courts have ruled that it’s okay for the Navy to transport prisoners” in some cases, so there’s a possibility that the Armed Forces could be “transporting immigrants to detention facilities, or children to [shelters], once they’ve been apprehended.”
Air Force Gen. Terrence J. O’Shaughnessy, chief of U.S. Northern Command, said in a news briefing Oct. 29 that the troops being sent to the border are armed and that “everything that we are doing is in line with and adherence to Posse Comitatus.”
O’Shaughnessy said the list of military resources being sent to the border includes “three highly experienced and capable combat engineering battalions with expertise in building temporary vehicle barriers, fencing”; “aviation, engineering, medical and logistic resources”; Black Hawk helicopters with night-vision capabilities that can transport CBP personnel; “military police units”; “three C-130s and a C-17,” which are military transport aircraft; and “deployable medical units.”
The Defense Department did not answer whether any of these troops would be dealing directly with migrants (although it doesn’t seem to be the case from O’Shaughnessy’s comments) or how these costs will be covered.
The Pinocchio Test
It’s incredible to imagine that the president could wipe away a more-than-a-century-old reading of the Constitution, by himself, with the stroke of a pen. That’s not how government works.
The Justice Department’s official position from 1995 indicates that Trump is doubly wrong: You can’t erase birthright citizenship with an act of Congress or an executive order. The Supreme Court’s decisions in Wong Kim Ark and Plyler strongly suggest that the 14th Amendment’s birthright-citizenship guarantee extends to undocumented immigrants’ children.
Trump has made the Supreme Court more conservative, but conservative judges tend to interpret the Constitution as it was understood at the time of its drafting. So good luck with that.
The president also warns that migrants could be “captured” by the military. That’s not how the government works, either. The 5,200 troops deploying to the border can provide a range of support services, but U.S. law expressly forbids them from participating in “a search, seizure, arrest or other similar activity.”
Trump’s eye-popping comments are bound to stir debate in some quarters and strike fear in others, but they have only a tenuous connection to the facts and merit Three Pinocchios.
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