Tuesday, October 30, 2018

Modifying Birthright Citizenship

It looks like Trump will take action on this issue. It relates to an interpretation of the 14th Amendment's Citizenship clause. Here is the basic argument.

From what I can tell, the opposition argument, once you get past all of the typical name-calling and frothing at the mouth, is that language of the 14th Amendment means "you're born here, you're a citizen" unless you're the child of an ambassador or diplomat (or invading soldier). I don't have a dictionary from 1860s to help, but so far as I can tell, that doesn't make much sense because the 14th Amendment requires residency as well "are citizens of the United States and of the state wherein they reside." It looks like the framers did not mean for the children all foreigners to just become citizens unless they were already allowed to live here permanently.

In essence, this means that the children of legal residents (green card holders) are naturally born citizens. Children of illegals are not, so anchor babies would cease to be a thing. Children of tourists and foreign exchange students are not citizens, which should end birth tourism. Not sure where refugees and asylum seekers fit into all of this, but better to error on the side of NOPE if their status is undetermined. There's already too many garbage asylum claims that seek to take advantage of our generous laws and incompetent system. We don't want to encourage more. 

I realize that has not always been how the country works, but the idealized Ellis Island is a fantasy. People there were screened and many were sent back to where they came from. Plus, now that we have such a big welfare state and all sorts of government benefits, there should be a clearer set of restrictions on who is let in. 

Whether the President has the power to alter the definition via executive order is debatable. Then again, Obama granted amnesty and created DACA by fiat, so why can't President Trump do whatever he wants in this area of which he has quite a bit of plenary power. The preferred method, of course, is that Congress would enact legislation resolving these questions, but its too dysfunctional for that right now - mostly because there are too many pro-amnesty pols from both sides. 

UPDATE: I've done a bit more research. There is a lot of discussion of these issues going back centuries, so it is really just skimming some of it. Some of discussion seems to be conflicting and very little of it relates to those temporarily passing through. Really, there was no such thing as "illegal" immigration. That would cut in the benefit of the pro-birthright citizenship camp, I believe, though a lot of it depends on what words meant back at the framing of the 14th Amendment, which was naturally informed by past uses of the terms.

I think the crux of the issue, from a legal perspective, will be whether residency was required for one to be "subject to the jurisdiction" of the United States as opposed to the laws simply applying to those folks as well. Since illegals and tourists can't, by definition, be residents in the US, that would seem to favor the pro-Trumpian side of the argument.

Further research is needed.