Posted by: Floyd J Fernandez, J.D. | September 4, 2015

On Birthright Citizenship: Trump, Truth & Consequences

The debate concerning the definition of what constitutes what the Immigration & Nationality Act calls a “natural born” citizen of the United States has to be, in my mind, the most surprising and disturbing debate I have heard in my lifetime. To understand why I would say such a thing, you have to know a little about me. I was born of a mother who possessed multiple ethnic backgrounds, but which, excepting a little Cherokee Indian strain, was pretty well Northern European.  On my father’s side I am totally European Spanish with a portion of Sephardic Jewish from North Africa and Spain.

Enter the anti-immigrants.  Their champion right now is Donald Trump, but their legal and philosophical guru is John Eastman, law professor at Chapman University Law School in Fullerton, California and former Reagan-era Assistant Attorney General. (http://www.nationalreview.com/article/422960/birthright-citizenship-reform-it-without-repealing-14th-amendment).  In his most recent article in ‘National Review’, Eastman basically looks at uniformly understood constitutional interpretation of the 14th Amendment’s Citizenship Clause for 147 years and says, “All baloney.”  Now simply by virtue of the ‘U.S. v. Kim Wong Ark’ case of 1898, where the unanimous Supreme Court said that those born in the U.S.A. by everyone who was domiciled in the country were automatically citizens, save for children of invading soldiers and foreign diplomats, the matter should be conclusive.  Yes, done, whatever other problems we have on immigration, whether unsecure borders, failure of visa overstays, failure of American culture and educational institutions to properly and forcefully inculcate American heritage, values, and require the learning and use of English as a primary language, getting rid of criminal aliens, issues of American employers using foreign labor to undercut American workers, they can be addressed through changes in Congressional legislation and regulatory reform.  But claiming, as columnists Ann Coulter and Marc Levin did, that not only should birthright citizenship be revoked for those born in the future, but that it should be revoked retroactively, and apparently by Professor Eastman, begins to evoke scenes of past outbursts of ugly nativism, from the Know-Nothing anti-Irish sentiments of the 1840s to the Chinese Exclusion Act of the 1890s to the Japanese internment camps of the 1940s.

In opposition is also a legal analyst writing for ‘National Review’, John Yoo, professor of constitutional law at University of California at Berkeley.  (http://www.nationalreview.com/article/422914/birthright-citizenship-donald-trump).  Professor Yoo’s defense of aggressive interrogation techniques on terrorism operatives in the immediate years after the Al Qaeda attack on Sept. 11, 2001, won him many enemies on the political left, but he does a sound job of examining the language of the Citizenship Clause, particularly the critical words “and subject to the jurisdiction thereof,” and then pulls in the reasoning of the ‘Wong Kim Ark’ case with the legislative history of the 14th Amendment to show that the benefits of birthplace citizenship was to be extended even to those ethnic groups seen as distasteful, such as the children of otherwise excluded Chinese immigrants, who at the time were refused the right to naturalized citizenship under the Chinese Exclusion Act.  The comments in 1866 of Senators Edgar Cowan of Pennsylvania and John Conness of California insured that the language of the Citizenship Clause protected the children of aliens.

However, Professor Yoo failed to address the heart of Professor Eastman’s argument, which came in the legislative history and ‘Wong Kim Ark.’  And that is the word, “domicile.”  The understood meaning of the 14th Amendment appears to crash in the failure to address Eastman’s claim that “domicile” must embrace both territorial jurisdiction and legal jurisdiction.  He claims that “domicile” could not possibly include those who came illegally or entered for facially flimsy reasons, and in effect with intent to simply have a child that would obtain citizenship status, to later avail themselves of the child’s natural-born citizenship.  He states that the ‘Wong Kim Ark’ Supreme Court only gave the expansive reading to those who were “domiciled” parents, and through them, to their children.  Eastman claims that the children of illegal immigrants could not possibly be coming to avail themselves of the legal requirements to gain domicile, such as serving on juries, serving in the military, etc.  Therefore, an expansive meaning of the word “domiciled” cannot be applied to those who try to with feeling, so the arguments all over the of them with the campain from sweater, the Dr. Eastman camp has considerable persuasive clout that Prof. Yoo left untouched, with possible drastic ramifications.

Enter a most unlikely commentator.  Newly-minted lawyer Justin Lollman addressed the constitutional question and its ramification in his April 2015 article in the ‘University of Virginia Law School.  (http://www.virginialawreview.org/volumes/content/significance-parental-domicile-under-citizenship-clause).  Among multiple issues in his lengthy tome, Lollman confronted the issue of “domicile”, and used really sound reasoning that would be extremely helpful.  He breaks up the notion that political “domicile” could only mean (as opposed to territorial jurisdication) legal residence with subjection to citizenship-oriented duties such as serving on juries or voting.  He showed legally recognized definitions from both U.S. DHS and State statutory definitions, as well as recognized U.S. Supreme Court decisions relevant to the definition of “domicile”, especially the 1981 ‘Plyler v. Doe’ decision, that the actions of an individual to achieve permenance for him and his family establishes domicile, even if that presence is an unlawful one.

 

Lollman, therefore, differentiates between the instances of Chinese and other racketeering organizations who would game the system to have women come to the U.S., bear children that would gain citizenship in order to get legal status at a distant time in the future, and the masses who come to permanent gain residence in the  U.S. in order to obtain a better life.  He proposes a change in the law that would define eligible persons based upon a clear showing of intent, that would not involve an amending of the Constitution.  However, the reality is that the candidate who demands any change in birthright citizenship is almost a certain loser in a general election campaign.  Those who would want to preserve a country that honors the rule of law and a sound ability to preserve the ability of American citizens to successfully compete for jobs would be best served working on what does work:  effective border security and interior security along with a universal worker verification program through a mandatory e-Verify system.

 

 

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