Trump should for­get ex­ec­u­tive or­der on cit­i­zen­ship

San Antonio Express-News - - OTHER VIEWS - RICH LOWRY com­ments.lowry@na­tional re­view.com

All of a sud­den, we’re all orig­i­nal­ists and be­liev­ers in the sagac­ity and in­vi­o­late hand­i­work of long-ago white males.

Pres­i­dent Don­ald Trump’s trial bal­loon about chang­ing birthright cit­i­zen­ship via ex­ec­u­tive or­der has brought a hail of de­nun­ci­a­tions. He wants, the crit­ics say, to change the Con­sti­tu­tion un­der his own power, in the ser­vice of the al­legedly racist goal of ex­clud­ing the chil­dren of il­le­gal im­mi­grants from U.S. cit­i­zen­ship.

Con­trary to the chest-beat­ing, there’s a se­ri­ous case that the 14th Amend­ment, which grants cit­i­zen­ship to any­one born here who is “sub­ject to the ju­ris­dic­tion” of the United States, is am­bigu­ous on whether the pro­vi­sion ap­plies to il­le­gal im­mi­grants. And, as a pol­icy, nearly un­lim­ited birthright cit­i­zen­ship has ob­vi­ous down­sides. But the ex­ec­u­tive or­der the pres­i­dent is con­tem­plat­ing is a bad idea and should go in what­ever cir­cu­lar fil­ing cab­i­net is re­served for mis­be­got­ten in­spi­ra­tions that he’s even­tu­ally talked out of.

The ar­gu­ment about the 14th Amend­ment is whether it, with the ex­cep­tion of diplo­mats and for­eign armies, is meant to give cit­i­zen­ship to the chil­dren of any­one here, or whether it re­quires some deeper al­le­giance to the United States. The case for the lat­ter, more lim­ited in­ter­pre­ta­tion has some for­mi­da­ble ad­vo­cates, but the ex­pan­sive view has more sup­port­ers and also long-stand­ing prac­tice on its side.

It’d cer­tainly be in­struc­tive to have the Supreme Court weigh in, since the ques­tion of il­le­gal im­mi­grants hasn’t been di­rectly ad­dressed by the courts, and no one who de­bated and adopted the 14th Amend­ment con­tem­plated a large-scale in­flux of un­doc­u­mented im­mi­grants, or the rise of birth tourism.

Il­le­gal im­mi­grants, of course, come here in open de­fi­ance of our laws and stay by con­tin­u­ally vi­o­lat­ing our laws. They are sub­ject to our ju­ris­dic­tion, but do ev­ery­thing they can to evade it, and aren’t fully sub­ject to it — it wouldn’t make any sense, for in­stance, to try an il­le­gal im­mi­grant for trea­son. As a pol­icy mat­ter, it is per­verse that il­le­gal im­mi­grants win one of the world’s great lot­ter­ies through their law­break­ing, by get­ting cit­i­zen­ship for their chil­dren.

So it’s un­der­stand­able that Trump op­poses the sta­tus quo, and is frus­trated by it. But that doesn’t mean he should is­sue an ex­ec­u­tive or­der.

De­spite the cot­tage in­dus­try of anal­y­sis of him as a bud­ding Hitler, Trump has so far avoided the uni­lat­eral ex­cesses of Pres­i­dent Barack Obama. By and large, his ex­ec­u­tive or­ders and reg­u­la­tions have been de­voted to re­vers­ing Obama’s. It’s been a tit-for-tat uni­lat­er­al­ism. A birthright or­der would be dif­fer­ent.

Con­gress has leg­is­lated in this area and cod­i­fied the lan­guage of the 14th Amend­ment. It hasn’t acted to change the in­ter­pre­ta­tion of birthright cit­i­zen­ship, even though it had am­ple op­por­tu­nity to do so across the decades. (An ef­fort spear­headed by Harry Reid in the 1990s never went any­where.)

So if Trump wants to test the lim­its of birthright cit­i­zen­ship, he re­ally needs Con­gress to move, which it won’t. Des­per­a­tion to change the rules on im­mi­gra­tion even though Con­gress wouldn’t act is what made Obama re­write the im­mi­gra­tion laws on his own. Trump should re­sist the same temp­ta­tion.

Re­gard­less, if the pres­i­dent goes down this route, he will likely get swamped in the courts. There would be an im­me­di­ate in­junc­tion. A case might not even make it to the Supreme Court, and the courts wouldn’t even have to speak to the un­der­ly­ing is­sue of birthright cit­i­zen­ship — they could just rule that the ex­ec­u­tive or­der ex­ceeds the pres­i­dent’s author­ity. Even such a lim­ited de­ci­sion would be widely in­ter­preted as an af­fir­ma­tion of the cur­rent in­ter­pre­ta­tion of the 14th Amend­ment.

The best way to com­bat il­le­gal im­mi­gra­tion is an E-Ver­ify sys­tem that re­quires em­ploy­ers to as­cer­tain whether their em­ploy­ees are le­gal. It doesn’t have the emo­tive power of Trump’s other im­mi­gra­tion pri­or­i­ties — the wall, tent cities and troops at the bor­der, and now this — but it is more achiev­able and would be more ef­fec­tive.

Mean­while, he should put his pen and phone away.

As­so­ci­ated Press file photo

Miguel, an il­le­gal im­mi­grant, has two chil­dren born here. E-Ver­ify is the best way to fight such il­le­gal im­mi­gra­tion.

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