And just in time for November 6, the question of birthright.
Trump’s Ace of Trumps. President Trump’s November 1 immigration address (21:13) described America as “a welcoming country” whose generosity to immigrants is without parallel anywhere, but one facing limits on what we can absorb. His main points:
(a) America needs immigrants on a merit basis, waiting their turn;
(b) our immigration laws are “incompetent and Democrats are obstructionist;
(c) we will not allow “large, well-organized” caravan migration—if we allow caravans now, more and bigger caravans will follow;
(d) caravans have overrun Mexican police and soldiers;
(e) migrants must get in line with everyone else;
(f) caravan marchers refused asylum offer by Mexico, showing that they are migrants, not refugees;
(g) billions of poverty-level people around the world — asylum restricted to specific emergencies;
(h) court rulings are writing the laws — “catch and release” is a disgrace, and it will end;
(i) millions of people never show up for court hearing — biggest loophole is fraudulent asylum seekers, “using well-coached language by lawyers and others”: they read prepared script to border officials;
(j) court process can take years — as much as three and a half years for a single case, and only about 3 percent show up — we will now keep migrants at border in tents, holding them at designated ports of entry;
(k) caravans professionally organized and funded, with minimal number size of Vermont, maximum over 10 million;
(l) other countries tell migrants to get out, about one million aliens have received final orders of removal, yet remain at large;
(m) “This endemic abuse of the asylum system makes a mockery of our immigration system — displacing legitimate asylum seekers… while rewarding those who abuse or defraud our system”;
(n) “illicit and deadly” narcotics trade is inflicting great damage on our country;
(o) human trafficking now at highest level globally than ever, because of the Internet;
(p) Democrats’ vision is to offer them “free health care, free welfare, free education and even the right to vote” — taxpayers get the tab — “No nation can allow itself to be overwhelmed by uncontrolled masses of people rushing their border”;
(q) Congress must “overcome ‘open borders’ obstruction” to address crisis and “endurance of our nation as a sovereign country.”
Statistical support for the president’s speech is in this White House Fact Sheet.
Thousands Near. In 1973 French author Jean Raspail published The Camp of the Saints, his prophetic novel about France being overrun in the 21st century by a wave of Third World migrants. An armada of one million immiserated souls sets sail from India, headed for France. Morally disarmed by the values of Western civilization, France cannot stop the invasion, and is overrun by migrants who overwhelm the French and destroy their civilizational culture.
The thousands forming caravans headed across Mexico from Central America are not the million migrants of Raspail’s novel. But they are a harbinger of many more to come if America does not act. President Trump, to his credit, has mobilized the military and National Guard at the border, deploying Jersey barriers. The posse comitatus laws — in force in America for 140 years — bar interior use of the military, though federal troops have been deployed to tamp down civil unrest, after natural disasters or riots. Initially thousands on foot, now buses are being provided, especially for those unable to walk long distances.
My own views on immigration have shifted since the Reagan era immigration, due to the abject failure of the 1986 Simpson-Mazzoli bill that legalized with amnesty three million illegal aliens then resident. Part of that change stems from personal experience, plus secondary knowledge derived from stories of friends. Part of this change comes from knowing that all walls are not created alike. Some aim to keep people out (China’s Great Wall), while others aim to trap people already resident within (Berlin Wall); and many walls have gates, to selectively admit visitors and migrants, and allow exit of same.
Born here, in my 56 years of international travel I’ve had to pass through gated walls, in the form of passport control — at airports, on boats, trains, cars, even on foot. Had I on any of those occasions attempted to rush past or jump over barriers, the local authorities would have taken a rather dim view of my conduct, with jail likely.
Aliens and Apportionment. As for those illegally living in “sanctuary” cities or states, if the government can find me — the IRS has never had any trouble doing so — I want ICE to find those living in the shadows. And to make good policy it would be nice if we knew how many illegal aliens are here. Recently, the number estimated to be here has risen from 11 million to 22 million, according to a Yale study, with a range of 16.5 to 29.5 million.
The presence of illegal immigrants — at least, those who live out of the shadows — affects the decennial apportionment of seats in the House of Representatives. This holds true even if they do not vote. In 2000, there were an estimated 18 million non-citizens resident in the U.S. (this includes those legally present here but not citizens); of these, 70 percent lived in six states, and 50 percent in three (California, Texas, and Florida). The 18 million then represented, at 650,000, nearly 29 Congressional seats. Fox’s Tucker Carlson provides historical perspective, focusing on (5 min.) how Democrats shifted their views on illegal immigration over the past half century. Put simply, the Democrats pushed aside concern over adverse impact on domestic workers in favor of the prospect of gaining more by getting massive numbers of enfranchised immigrant votes, versus losing fewer voters displaced by the new illegal arrivals.
Stand In, or Jump Over, the Line. Nor is standing in line too much to ask, save in emergencies — refugees with specific, imminent fear of persecution: the Iraqis and Afghans who have helped our military in post-9/11 wars are a prime example of those we should allow to jump to the head of the line. But not for economic migrants, not with nearly half the world living on less than $5.50 per day. Kirstjen Nielsen recently told (4 min.). Chris Wallace that the administration will not let the caravan in.
Much is made of the “dreamers” whose parents came to America illegally, and that now they should not be punished for sins committed by their parents. Generally we accept such arguments. But not always. If mom or dad commits a serious crime, one or both might wind up in jail. Thus dreamers can be told to apply for citizenship and get in line. They can also be asked to meet certain conditions — lack of criminal record, etc. Doing so may not be fair, but neither was it fair for their parents to jump the line.
And there are the stories of those who waited patiently in line, some for ten years, to emigrate legally. One not-so-lucky acquaintance of mine applied about 25 years ago for a green card. She graduated Columbia University, and while waiting for a decision was teaching students in the Bronx. A pretty Italian girl going to the Bronx when the crime rate stood at astronomical levels took no small risk of joining the roster of millions of victims of violent crime.
But the Clinton administration rejected my friend’s application for a green card — probably due to her being European and Caucasian, not the priorities for Democrats since passage of the 1965 law that favored non-white migrants from non-European countries. So my friend was forced to seek employment elsewhere; she wound up teaching for several years in Cape Town, South Africa; then she emigrated to northern England. Her one mistake: playing by the rules. Not for her the benefits that President Clinton promised people who were working hard and “playing by the rules.” Said he in 1992:
For more than two years now, the average middle-class family has worked harder for less money to pay more for health care, for housing, for education, for taxes. Poverty has exploded, especially among working people.
I just got out of a rather bruising campaign in New York State. You might have read about it. But one of the things that really moved me about that was that I met so many courageous people, people you never see on television, who live in the Bronx and Brooklyn, who live in high-crime neighborhoods and get up every day and literally risk their physical security, going to and from jobs that still pay them less than top-level wages, to support children in difficult circumstances, playing by the rules.
Birthright Bypass. Another touchstone is “birthright citizenship” — the protection given by the 14th Amendment to those born on U.S. soil. A widely held view has been that anyone born here, regardless of how parents got here — is a citizen, with an automatic right to stay. This view has led to “birthright tourism” and “anchor babies” — children born here, who later use “chain migration” to reunify the family. A recent report from the Congressional Budget Office (CBO) tallies 4.5 million anchor babies currently resident in the U.S., a number greater than the 4 million annual births in the U.S.
Were Trump to alter the traditional view by executive order the chance that the courts will uphold this are slim. NRO’s Andy McCarthy explains the legal arguments. He points to section 1401 of the Immigration and Naturalization Act, as showing that Congress in 1952 understood jurisdiction more expansively than the Framers of the 14th amendment did in 1868; and also, Congress in 1952 in stating its new understanding indicated its intent to retain legislative control over the question of birthright citizenship. Hans von Spakovsky counters that neither the 1952 statutory amendments nor existing court precedent apply directly to children of those whose parents arrive illegally:
As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”
In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.
Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.
In sum: the 19th century distinction between partial — territorial — jurisdiction and political — shift of allegiance — jurisdiction is a superior statutory interpretation. A casual tourist submits to territorial jurisdiction; if the tourist robs a bank while visiting our shores of course America as host country can subject the errant visitor to the operation of our laws. But no one believes visitors become loyal Americans — shifting allegiance — when coming here as tourists. Naturally, our State Department, as Spakovsky notes, is on the wrong side.
The WSJ editors suggest that the president issue a narrow executive order, instructing the executive departments to decline to extend blanket birthright citizenship pending clarifying action by Congress:
With this judicial and legislative lack of clarity, an executive order is perfectly proper, perhaps even necessary, to instruct executive-branch officials and agencies not to confer birthright citizenship except when Congress or the Supreme Court has mandated it. To say that an executive order is necessary and proper, though, does not mean it fully settles the matter. The issue of birthright citizenship should be part of a larger legislative package focused on strengthening the U.S., its security and its economy.
Few developed nations — and none of the countries of Europe, which many Americans want to emulate — practice the rule of jus soli, or “right of the soil.” More common is jus sanguinis, “right of blood,” by which a child’s citizenship [is] determined by parental citizenship, not place of birth.
After first securing the nation’s safety, America’s immigration policy should be an extension of America’s liberating first principles. That means it should be based on the consent of the governed and the rule of law, and a deliberate and self-confident policy of patriotic assimilation. Birthright citizenship does not meet this rubric. It ignores the principle of consent annunciated in the Declaration of Independence, undermines the rule of law established in the Constitution, and belittles the idea of citizenship and naturalization — the source of America’s uniquely successful immigration story.
In any event, it is doubtful that Trump justices Neil Gorsuch and Brett Kavanaugh will sally forth into the politically explosive task of altering the nation’s immigration patterns. Nor will Chief Justice Roberts pitch the Supremes into an issue where the public is so deeply divided. Such a judicial venture would be most injudicious, and likely damage the Supreme Court’s reputation, as well as the reputations of overly adventurous justices. The Trump “newbie” justices will focus on separation of powers, scope of judicial review, and other law-nerd weeds of great legal significance, yet far removed from political wars.
President Trump’s address seeks to involve Congress. He is using the birthright issues for the legitimate political purpose of energizing GOP voters to turn out come Tuesday. But the president seems not to realize a counterweight political implication of his birthright statements:
By asserting his right to use presidential authority to issue executive orders on immigration, to an electorate largely unschooled in the finer points of arcane legal matters, he risks that voters who support his immigration policy may turn out in lower numbers on Election Day. After all, if the president can do this on his own, then — at least on this issue — he does not need control of either house of Congress.
Bottom Line. Let us return to what three Democrats have said as to illegal immigration: Sen. Harry Reid (0:42) in 1993 — “no sane country would do that” — reward illegal immigration; President Clinton (1:24) in 1995 — “We are a nation of immigrants, but we are also a nation of laws.”; and President Obama numerous times, that he lacked authority to act on immigration without Congressional approval. Here is a 2011 Obama statement:
With respect to the notion that I can just suspend deportations through executive orders, that’s just not the case, because there are laws on the books that Congress has passed — and I know that everybody here at Bell is studying hard, so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books that are very clear in terms of how we enforce our immigration system that for me to, simply through executive order, ignore these constitutional mandates would not conform with my appropriate role as president. That does not mean, though, that we can’t make decisions, for example, to emphasize enforcement on those who’ve engaged in criminal activity.
This course Obama reversed in 2014 (15:46).
Leave us end this dismal picture with a chuckle: TAS writer Jeffrey Lord suggests places inside the U.S. of A. where caravan folks should be housed.
To which I add these palatial pleasure places: gazillionaire mega-yachts, jumbo jets.…
John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014).