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Donald Trump’s Wise Challenge to Birthright Citizenship

Among the reasons Donald Trump is president is that his natural political instincts are superior to those of any other current figure.

As campaign 2018 entered its final week, Trump seized upon and elevated the single issue that most energizes his populist base and most convulses our media elite.

Warning of an “invasion,” he pointed to the migrant caravan that had come out of Honduras and was wending its way through Mexico. He then threatened to issue an executive order ending birthright citizenship.

As other caravans began to assemble in Central America, Trump said he would send first 5,200 and then 15,000 troops to the border.

This ignited predictable hysteria from the media elite who decried his “racism,” his “lying,” and his “attack on the 14th Amendment.” Trump, they railed, is sending more troops to the Mexican border than we have in Syria or Iraq.

True. But to most Americans, the fate and future of the republic is more likely to be determined on the U.S.-Mexican border than on the border between Syria and Iraq.

Moreover, in challenging birthright citizenship, Trump has some constitutional history on his side.

The 14th Amendment, approved in 1868, was crafted to overturn the Dred Scott decision of 1857 and to guarantee citizenship and equal rights under law to freed slaves and their children.

change_me

Did it guarantee that everyone born on U.S. soil is a U.S. citizen?

No. In the 1884 Elk v. Wilkins decision, the Supreme Court ruled that John Elk, a Winnebago Indian born on a reservation, had not been denied his constitutional right to vote, as he was not a U.S. citizen.

Not for 56 years, when Congress passed the Indian Citizenship Act of 1924, did Native Americans become U.S. citizens.

Also, the 14th Amendment confers citizenship on those born in the U.S. and “subject to the jurisdiction thereof.” Children of foreign diplomats, though born here, are not citizens.

Most legal scholars do not think Trump can, by executive order, determine who is or is not a citizen under the 14th Amendment.

Yet should Trump issue an executive order and lose in the Supreme Court, the controversy could raise public consciousness and force Congress to enact legislation to clarify what the 14th Amendment precisely means.

Only Canada and the United States, among advanced nations, have birthright citizenship. No European country does. And the Conservative Party in Canada is moving to end it. Does it make sense to grant all the honor, privileges, and rights of lifetime U.S. citizenship to anyone who can fly to America or evade the Border Patrol and have a baby?

Nor is this a small matter. The Pew Hispanic Center estimates that 6 percent of U.S. births (250,000 per year) are to undocumented immigrants.

Yet that 250,000 is a drop in the bucket compared to the total number of immigrants now coming. In 2016, President Obama’s last full year, 1.75 million legal and illegal immigrants arrived, a record.

With two months to go in 2017, the number of legal and illegal immigrants estimated to arrive this year is 1.61 million.

Thus, in two years, 2016 and 2017, the United States will have absorbed more migrants, legal and illegal, than all the people of the 13 states when we became a nation.

According to the Center for Immigration Studies, there are 44.5 million immigrants in the U.S. today, legal and illegal, a number that far exceeds the total U.S. population, North and South, at the time of the Civil War.

While almost all of our immigration before 1965 was from Europe, only one in 10 immigrants now comes from the Old Continent.

Mexico, Central and South America, and the Caribbean provide a plurality of migrants, legal and illegal. They have displaced East Asia and South Asia—China, Korea, the Philippines, India—as the primary contributors to the burgeoning U.S. population.

We are assured that the greater the racial, ethnic, religious, and cultural diversity we have, the stronger a nation we shall become. Whether true or not, we are going to find out.

For the European population of America, 90 percent of the country in 1965, will have fallen to about 60 percent by 2020, and whites are headed for minority status about 20 years after that.

Of America’s most populous states—California, Texas, Florida, and New York—the first two are already minority majority and the latter two are not far behind.

Yet the gaps between Asian and white Americans, and Hispanic and African Americans—in income and wealth, crime rates and incarceration rates, test scores and academic achievements—are dramatic and seemingly enduring.

To the frustration of egalitarians, the meritocracy of free and fair competition in this most diverse of great nations is producing an inequality of rewards and a visible hierarchy of achievement.

Politically, continued mass migration to the USA by peoples of color, who vote 70 to 90 percent Democrat, is going to change our country another way. Red state America will inevitably turn blue.

Patrick J. Buchanan is the author of Nixon’s White House Wars: The Battles That Made and Broke a President and Divided America Forever. To find out more about Patrick Buchanan and read features by other Creators writers and cartoonists, visit the Creators website at www.creators.com.

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79 Comments To "Donald Trump’s Wise Challenge to Birthright Citizenship"

#1 Comment By student On November 3, 2018 @ 10:43 am

The issue should be what the phrase “and subject to the jurisdiction thereof” meant at the time. This becomes pretty clear when
reading quoted from the authors and contemporaries. And no, the President can’t change the constitution…but he can certainly challenge its interpretation. The SCOTUS can then make a determination, which is far
overdue.

#2 Comment By grumpy realist On November 3, 2018 @ 11:32 am

I’m sure that quite a few people would have loved to have used a similar argument against Pat’s ancestors, who were Irish.

Has Pat looked at the whole Windrush scandal in the U.K.? Does he not see how going away from “birthright citizenship” just hands a huge amount of power over to an unelected bureaucracy and the whim of politicians? At least “birthright citizenship” is easily defined–it’s a good “bright line.” But if we do anything else, I suspect we’ll see chaos galore.

#3 Comment By Louism On November 3, 2018 @ 12:28 pm

There is a lot of contempt for big liberal desensitized and unpersonal cities like NYC ever since the United States consisted of 13 colonies.

Now the United States of 350 million people (400+ million if one includes undoctumented illegals) is developing into mega-cities and mega regions (San Diego-LA, Dallas-FTW, Boston-Washington, etc)

Imagine is we continue to accept 1 million legal immigrants per year and our nation joins India and China as nations with over 1 billion people.

If you think that our present nation cannot manage the levels of poverty, illiteracy etc then wait until our nation doubles in size to 1 billion people all demanding govt programs and high taxes and big govt to survive.

#4 Comment By Ken Zaretzke On November 3, 2018 @ 1:28 pm

If the Framers intended to proscribe retroactivity in Article III, Section 2, they could have said so. The fact that they didn’t say so is revealing.

Here are some reasons why it wouldn’t have made sense for them to have proscribed retroactivity as to the general legislative power, in contradistinction to the more specific legislation-making power. (Section 3-B of the Spendthrift case shows that the Court today rejects retroactivity for the latter only.) The most general reason is that to deny Exceptions Clause retroactivity would be to empower de facto judicial supremacy. (The EC itself is incompatible with formal, or non-de facto, judicial supremacy.) The Founders rejected judicial supremacy. A robust EC, including retroactivity as applied to *classes* of cases (rarely individual cases), is justified as a necessary way of blocking judicial supremacy.

A more specific reason: Past legal decisions reach into the present and are subject to the “rules” of the present, even if those rules didn’t exist at the time of the earlier decisions. Jurisdiction is *the* first rule of legality. It trumps legal finality and settledness. Finality and settledness are means to the end of law, whereas jurisdiction is as much an end as a means. It is prior to finality and settledness.

Retroactivity in jurisdiction-stripping appears to be a matter of necessity.

#5 Comment By Egypt Steve On November 3, 2018 @ 2:23 pm

Re: “No, “Subject to jurisdiction” means if an Indian couple arrives in America and throws away their Indian Passports and claims that they are UN-DOCUMENTED, the Indian couple and their born or unborn child(ren) are still under the legal jurisdiction of the Govt. of India as they can apply to a near Indian Consulate to replace their lost or stolen Indian Passports!”

OK, the baby grows up, and commits a crime. Do we say that he is under the jurisdiction of the government of Indian, and give him a pass? No we do not. Whatever local, state and federal laws are applicable to baby born to U.S. citizens, to that baby as he grows into a child, and to that child as he grows into an adult, are equally applicable to the child of an illegal immigrant from birth on. Such a person is, ipso facto, subject to the jurisdiction of the U.S. and of the state in which he resides, insofar as anyone else of his age is. The only exceptions are legally recognized exemptions such as diplomatic immunity or military immunity. You may not like it, but that is the plain meaning of the words of the 14th Amendment.

Now, you may argue that that is not what the framers of the 14th amendment intended. But so what? As Antonin Scalia famously said: “[It] is the law that governs, not the intent of the lawgiver.” If this gets litigated, any conservative judge who honestly applies the textualist principles of Scalia will have to recognize that birthright citizenship is enshrined in the text of the constitution itself and could only be eliminated by constitutional amendment.

#6 Comment By Jhawk On November 3, 2018 @ 5:51 pm

“why they come”:

This migrant lawsuit is a bit more nuanced. As I understand it the argument is that anyone can request asylum and anyone who does so is entitled to Due Process, i. e. a hearing. Doesn’t mean their claim must be granted, only that it must be heard. If correct, that strikes me as a reasonable standard.

#7 Comment By quanta On November 3, 2018 @ 6:03 pm

@EgyptSteve “Whatever local, state and federal laws are applicable to baby born to U.S. citizens, to that baby as he grows into a child, and to that child as he grows into an adult, are equally applicable to the child of an illegal immigrant from birth on. “

But it doesn’t say that anywhere in the Constitution.

I have European friends born here in America who 1) never paid US taxes, 2) never registered for the draft, 3) never renounced any putative citizenship, and 4) got nervous a few years ago when we started forcing foreign banks to start reporting on American deposits, and 5) were told by the US government “No problem. You aren’t citizens. We aren’t coming after you for taxes, foreign bank accounts, or anything else.”

Which makes perfect sense. They were never American citizens, even though they were born here. Their parents weren’t diplomats or any other special status. Just foreigners who happened to have a child here. A foreign child.

#8 Comment By The Shroud of Tourism On November 3, 2018 @ 6:10 pm

This birthright citizen stuff is a typically egregious bit of liberal penumbra-mining ever. Penumbra of a 1982 Brennan footnote, no less.

Have Trump challenge it, promote to SCOTUS, end of story. Ain’t no “there” there in the Constitution for “birthright citizens”, people.

The real question is whether all those Chinese birth tourists are going to demand their money back.

#9 Comment By JR On November 3, 2018 @ 7:23 pm

I’m sorry, Pat may think he is not a racist, but he has said time and again that he has a problem with immigration from non-western countries because of “cultural reasons”.. I’m not sure how you can classify that except accepting that that’s his way of rationalizing his racist beliefs that people from non-western “cultures”, i.e., non-whites are incapable of being good citizens of US.

#10 Comment By Don Pepe On November 3, 2018 @ 7:45 pm

As a left-of-center California voter, it would bring tears of joy to my face when president Ocasio-Cortez signs an executive order scrapping that anachronism known as the 2nd amendment from the books, Im sure we all agree that is very unlikely that the red coats and their Indian nations allies are going to sweep down from Canada and raid settlements along the Ohio river valley ( read the excellent “That Dark and Bloody River” ) so a “Well regulated militia” is no longer necessary, and I KNOW that was the original intent of the framers of the constitution.

I can picture Mr. Buchannan then -red on the face- writing that no brown skin commie pinko revisionist has the right to interpret the constitution, it says what the founding fathers intended and period. So be careful what you wish for and what precedents you set to achieve that wish, we must always remember that a supposedly conservative court somehow found out that the founding fathers intended Mr. and Mr Obergefell to marry each other when they wrote the constitution.

Maybe it would be more productive to find out why a state with a 2.7 trillion Dlls. a year economic output goes out of it’s way to protect undocumented aliens…follow the money guys.

#11 Comment By Kurt Gayle On November 3, 2018 @ 10:49 pm

Dear Pat,
I’d like to join with Ted and genetuttle in wishing you a Happy 80th Birthday (Friday, November 2nd). We are in your debt, sir!

#12 Comment By too late bud On November 3, 2018 @ 10:59 pm

The problem with all the stuff Trump has been saying the last week or two – including his sensible remarks about so-called “birthright citizenship” – is that he didn’t do anything about it for two years.

For two years he ran errands for Wall Street, Israel, and Saudi Arabia. The opposite of the “America First” we were promised.

And now it’s too damn late.

#13 Comment By grin without a cat On November 4, 2018 @ 6:34 am

Wong Kim Ark was born in San Francisco, which was part of the US at that time.

He was born in the United States to parents who had “a permanent domicil and residence in the United States,” and were “there carrying on business,” so he was declared a citizen of the United States. It’s not clear that the decision would apply to children born of illegal aliens.

#14 Comment By nothing personal On November 4, 2018 @ 8:54 am

“I’m sorry, Pat may think he is not a racist, but he has said time and again that he has a problem with immigration from non-western countries because of “cultural reasons”.. “

That may be Pat’s preference, but most of us just want immigration stopped regardless of where it comes from. No Germans, Nigerians, Argentines, Englishmen, Russians, Chinese, Indians, Mexicans, Canadians, Koreans, Poles, Filipinos … none of it. We’ve got more than enough people already, and we need a century or two and several generations to turn the mind-boggling, record-shattering number of immigrants who are already here into real Americans.

#15 Comment By mrscracker On November 4, 2018 @ 10:23 am

Sending you happy, if belated , birthday wishes Mr. Buchanan.
Thank you so much for sharing your articles here. I don’t always agree on every point but I always enjoy reading them.
God bless!

#16 Comment By BobS On November 4, 2018 @ 12:32 pm

“Imagine is we continue to accept 1 million legal immigrants per year and our nation joins India and China as nations with over 1 billion people.”

The replacement birth rate in the US is 2100 births/1000 women- it’s currently at 1765 births/1000 women (it’s been falling since Pat Buchanan was a young man missing out on the fun in Viet Nam). Without immigration, population growth in the US would be entirely due to older & relatively unproductive people hanging around longer than they already do. Given current birth rates and immigration rates, it would be several hundred years before the US population reached 1B.
The mostly old white guys that comprise the majority of TAC readership should realize that your Social Security (and the Social Security of the mostly old white readership that come after you) is dependent on a robust immigration (since this country seems averse to performing the most logical fix to Social Security- removing the cap on earnings subject to the tax).

#17 Comment By A Free American of the Old Republic On November 4, 2018 @ 2:37 pm

Yes, by all means a very Happy 80th Birthday to Pat Buchanan. One of the good guys. As a TAC reader I am forever in your debt. Thanks.

#18 Comment By New Norms On November 4, 2018 @ 4:53 pm

@BobS “The mostly old white guys that comprise the majority of TAC readership should realize that your Social Security (and the Social Security of the mostly old white readership that come after you) is dependent on a robust immigration (since this country seems averse to performing the most logical fix to Social Security- removing the cap on earnings subject to the tax).”

Golly! I guess I have to totally change my mind because, being an Old White Guy, I need Asiatics and Hispanics to flood in at world historical levels to support me in my “unproductive” old age.

What a compelling argument.

#19 Comment By EliteCommInc. On November 4, 2018 @ 7:40 pm

“Without immigration, population growth in the US would be entirely due to older & relatively unproductive people hanging around longer than they already do.”

ohh nonsense, the assumption that we need immigrants to replace anyone is just unsupported.

Hence the unemployment rate. we are not even close to tapping out the available population for our labor needs.

It’s funny to listen advocates for immigration.

1. One the one hand immigration is not the cause for the job losses — it’s merely automation

2. But we need immigrants to replace our decreased workforce

On its face it makes no sense. If in fact automation is decreasing the need for more workers and we have x number of employed. It only makes sense to cease importing people and use the people you have.

#20 Comment By A Russian On November 5, 2018 @ 1:28 am

Just want to quickly point something out in response to Kurt Gayle’s comment citing Tucker Carlson’s position.

If birthright citizenship is as much of the problem as he says he is, then the Republicans had eight years under GWB to do something about it, and, crucially, HIS OWN EMPLOYERS at Fox News had eight years to force them to do something about it. He must either admit they failed at this “long overdue” debate, or admit that “there is no more serious debate than the debate over citizenship” must have been an exaggeration at best.

Also, it would be ironic if these movements over the Fourteenth Amendment end up not just curtailing it, but setting the precedent for a comparable curtailment of the Second Amendment. With these two out of the way, USA will become so much more like a typical European country – precisely the thing so many conservatives now say they don’t want.

#21 Comment By Great Scot On November 5, 2018 @ 8:18 am

@New Norms — “being an Old White Guy, I need Asiatics and Hispanics to flood in at world historical levels to support me in my “unproductive” old age.”

Tally one old white guy reader whose “unproductive” old age plans including working until my late ’70s, at least. I never believed the government would come through with Social Security, partly because it looks like they’re planning to spend my tax money on jobs, welfare, prisons, and pensions for immigrants.

Also, I don’t want any more people here than we’ve got. I’d be happier with fewer. The idea that population has to grow forever is sick in the head. We were a better country with fewer people. Now we’re in danger of turning into a third world hellhole. Our politics and institutions are already well along in that direction.

I must say I’m overwhelmed by all this solicitude for my Social Security payments, especially from people who pretty obviously can’t wait for me and my kind to kick off.

#22 Comment By BobS On November 5, 2018 @ 10:00 am

“…being an Old White Guy, I need Asiatics and Hispanics to flood in at world historical levels…”
Yeah, except they aren’t- the percentage of the US population comprised of immigrants is lower than it was in 1900.
Of course, they aren’t exactly “White”- and that’s the important thing, right?

“…the assumption that we need immigrants to replace anyone is just unsupported.”
Since 1950, the percentage of working age Americans has remained approximately steady (largely thanks to immigration, now that the baby boomers are reaching old age), while the number of Americans over 65 has nearly doubled.
Automation has certainly increased productivity (I’m assuming you want economic growth), but robots aren’t going to change your diaper (which studies have shown to be more frequently needed by ‘sky-is-falling’ Fox News viewers) or pay Social Security taxes.

#23 Comment By mrscracker On November 5, 2018 @ 11:14 am

Great Scot ,
I feel the same way you do about Social Security & about being productive into old age, but the demographic issue isn’t so much the population in numbers but the age of the population.
Sure, we could do fine with a smaller population-we’ve done that before. The problem is when a much larger segment of the population are elderly & there are fewer & fewer young people entering into the work force.
Our birth rates have plummeted. And that’s true for the most part globally as well.
The elderly now make up the fastest growing segment of our population & that is forecast to keep on increasing.
The very elderly & infirm use up the greatest amount of healthcare resources. Those resources have limits-especially so if there are fewer workers paying in to fund Medicare. So that should be a concern even to “Old White Guys.”
🙂

#24 Comment By LarryFB On November 5, 2018 @ 3:25 pm

Buchanan you are too late to get rid of the brown people. The birth rate of the U.S. citizens of Hispanic heritage outpace that of both white citizens and black citizens. Unless Trump magically makes it possible to deport U.S. citizens you can’t Make America White Again.

#25 Comment By BradH On November 5, 2018 @ 3:31 pm

@quanta

“They were never American citizens, even though they were born here. Their parents weren’t diplomats or any other special status. Just foreigners who happened to have a child here. A foreign child.”

Well sounds like it’s settled then! I mean, if anchor babies aren’t a thing then we can all just move on.

#26 Comment By kevin on the left On November 5, 2018 @ 6:53 pm

“I have European friends born here in America who 1) never paid US taxes, 2) never registered for the draft, 3) never renounced any putative citizenship, and 4) got nervous a few years ago when we started forcing foreign banks to start reporting on American deposits, and 5) were told by the US government “No problem. You aren’t citizens. We aren’t coming after you for taxes, foreign bank accounts, or anything else.””

Let’s go through this one by one:

1. IF your friends didn’t pay any taxes in America, they are either 1) cheating on their taxes, or 2) covered by a tax treaty which the US brokered with their government. In either case, the law that applies to American citizens, applies to them, as Americans have to pay taxes when they are abroad, unless exempt by a tax treaty.

2. Neither do green card holders, and not even the most radical opponent of birthright citizenship would argue that they fall outside the purview of the 14th Amendment.

3. Millions of Americans have dual citizenship.

4 and 5–> See above about tax treaties.

#27 Comment By mrscracker On November 6, 2018 @ 9:42 am

kevin on the left,
Yes, thank you for your comments. My brother lives & works in the UK & described the tax situation as you do.

#28 Comment By mrscracker On November 6, 2018 @ 9:46 am

LarryFB says:

“The birth rate of the U.S. citizens of Hispanic heritage outpace that of both white citizens and black citizens.”
*****************
You know, that’s been the case in the past but things are changing:

“The latest figures from the CDC are out: as described in “Baby Bust: Fertility is Declining the Most Among Minority Women,” at the Institute for Family Studies, 2017 fertility rates have been published, and show a 40 year low, at 1.76 lifetime births per woman, with the most dramatic declines, expressed in “missing births” over the past decade, occurring among Hispanic and African-American women, whose fertility rates are now, while still higher, much closer to the already-low rates of white non-Hispanic women. Specifically, the fertility rate for black women dropped from 2.15 to 1.89, and that of Hispanic women dropped from 2.85 to 2.1 in the time period of 2008 – 2016, compared to a decline from 1.95 to 1.72 births per non-Hispanic woman…”

[1]

#29 Comment By One Nation On November 6, 2018 @ 4:42 pm

“Well sounds like it’s settled then! I mean, if anchor babies aren’t a thing then we can all just move on.”

No, there’s a problem. Inconsistency in legal and administrative interpretations of the law, and it needs to be revisited and clarified by the Supreme Court.

We can’t continue to have a situation where some, amounting to hundreds of thousands of foreigners who are born here, aren’t citizens observe none of the obligations of citizenship, while others are able to claim it, more or less as they prefer. It’s up to us to decide who is and isn’t a citizen. It isn’t up to them.

Some people have been saying “tax treaties cover it”, but tax treaties don’t cover the draft, they don’t cover whether you have to report foreign bank accounts, or whether you serve in a foreign military.

That and the whole dual citizenship thing needs to go too. It’s a disgrace, corrupted loyalties, “citizens” who owe allegiance to God knows who. It’s like legalizing bigamy or something. Except it is not legal and was never made legal. It just isn’t enforced, or is enforced inconsistently.

Anyway, the whole thing is a long way away from being “crystal clear”. It’s murky as hell. A giant mess in fact. And it needs to be sorted out, and those who are here illegally (or alternatively are determined to have shirked their duty as citizens by not paying tax or registering for the draft) need to be kicked out or thrown in prison.