A TEST OF PRES­I­DEN­TIAL POW­ERS

Daily Press (Sunday) - - Opinion -

Pres­i­dent Don­ald Trump has al­ways made it clear to the Amer­i­can pub­lic that he fa­vors strict reg­u­la­tions re­gard­ing le­gal and il­le­gal im­mi­gra­tion.

Most re­cently he stated in an in­ter­view with Ax­ios that he be­lieves it to be within the pres­i­dent’s power to uni­lat­er­ally end “birthright” cit­i­zen­ship via an ex­ec­u­tive or­der de­spite the fact that the pol­icy is pro­vided ex­plic­itly for in the Con­sti­tu­tion.

Ac­cord­ing to the Cen­ter for Im­mi­gra­tion Stud­ies, there are at least 30 other coun­tries that grant birthright cit­i­zen­ship, de­spite Pres­i­dent Trump’s claim that the U.S. is the only coun­try to do so.

The claim prompted wide­spread back­lash from ex­perts ques­tion­ing whether Pres­i­dent Trump ac­tu­ally has the author­ity to ex­e­cute such ac­tions, es­pe­cially in terms of birthright cit­i­zen­ship. The birthright cit­i­zen­ship clause ap­pears in the Four­teenth Amend­ment to the fed­eral con­sti- tu­tion, passed in the wake of the North’s vic­tory over the South in the Civil War.

In the Supreme Court case U.S. v. Wong Kim Ark in 1898 the Court ruled that a child born to Chi­nese cit­i­zens in San Fran­cisco was con­sid­ered a U.S. cit­i­zen be­cause the first clause of the Four­teenth Amend­ment pro­tected his right to cit­i­zen­ship be­cause he was born on Amer­i­can soil. Thus, chil­dren born to peo­ple who are not legally in the coun­try are still granted U.S. cit­i­zen­ship de­spite their par­ents’ le­gal sta­tus. Crit­ics of the law ar­gue that il­le­gal im­mi­grants come to the U.S. to have chil­dren born who can then use their cit­i­zen­ship sta­tus to help their par­ents and other fam­ily mem­bers legally im­mi­grate un­der fam­ily re­uni­fi­ca­tion poli­cies.

In ad­di­tion to wide­spread crit­i­cism by Democrats, some Repub­li­cans have pushed back against Pres­i­dent Trump’s pro­posed use of an ex­ec­u­tive or­der. Most no­tably, Speaker of the House Paul Ryan, R-WI, has gone on record say­ing that in or­der to re­move the birthright cit­i­zen­ship clause, the proper con­sti­tu­tional amend­ment process would have to be un­der­taken. How­ever, the Trump ad­min­is­tra­tion has con­tin­ued to as­sert that the pres­i­dent has this power. Vice Pres­i­dent Mike Pence claims the Supreme Court has never ruled specif­i­cally on whether the “sub­ject to the ju­ris­dic­tion of ” por­tion of the clause ap­plies to those who il­le­gally en­ter the coun­try.

Re­cently, Pres­i­dent Trump an­nounced a new set of rules giv­ing him­self the author­ity to block asy­lum sta­tus for il­le­gal im­mi­grants. The new rules are likely tar­get­ing the Hon­duran car­a­van head­ing to­ward the U.S. bor­der, but this is un­cer­tain con­sid­er­ing that the Trump ad­min­is­tra­tion has de­clined to com­ment on which coun­tries will be af­fected by the de­ci­sion. Sim­i­lar to the birthright cit­i­zen­ship is­sue, le­gal schol­ars claim that the de­ci­sion vi­o­lates a ma­jor prin­ci­ple of fed­eral asy­lum that states a coun- try should ad­dress each asy­lum claim on its own mer­its.

The Trump ad­min­is­tra­tion is deriving its author­ity for this mat­ter the same way it did for the widely-pub­li­cized travel ban, also known by many as the “Mus­lim Ban,” claim­ing na­tional se­cu­rity needs. The re­vised ban was chal­lenged in the Supreme Court but was ul­ti­mately up­held in a 5-4 de­ci­sion ear­lier this year. Specif­i­cally, the ma­jor­ity de­ci­sion stated that the pres­i­dent held this author­ity as a re­sult of the del­e­ga­tion of power re­gard­ing im­mi­gra­tion pol­icy by Con­gress over a long span of time via the Im­mi­gra­tion and Na­tion­al­ity Act.

The act states that the pres­i­dent is al­lowed to sus­pend en­try of all aliens or place any sort of re­stric­tions on the en­try of aliens for a nec­es­sary pe­riod of time should na­tional se­cu­rity risks emerge. De­spite the ma­jor­ity de­ci­sion to up­hold the ban the Court’s de­ci­sion was heav­ily crit­i­cized in a dis­sent au­thored by lib­eral jus­tice So­nia So­tomayor. In her dis­sent she likened the de­ci­sion to the ap­proval to es­tab­lish Ja­panese in­tern­ment camps in WWII ac­cord­ing to Kore­matsu v. United States.

The only path for­ward for Trump to end birthright cit­i­zen­ship is to is­sue an ex­ec­u­tive or­der and force the Supreme Court to de­ter­mine if the Ar­ti­cle II pow­ers laid out for the pres­i­dent stretch as far as pro­vid­ing him au­tonomous power to amend the Con­sti­tu­tion. Given the speci­ficity of the lan­guage de­scrib­ing the amend­ment process in Ar­ti­cle V, it is doubt­ful that even a fa­vor­able court ma­jor­ity would find enough am­bi­gu­ity to al­low this. The court would al­most surely rule against such a claim.

A re­cent Pew Re­search poll shows that 68 per­cent of Amer­i­cans feel that wel­com­ing im­mi­grants from all coun­tries is es­sen­tial to our na­tional iden­tity, but like many is­sues to­day, opin­ions dif­fer greatly along party lines. Less than 50 per­cent of Repub­li­cans agree com­pared to 85 per­cent of all Democrats. Smith is a fel­low at the Wa­son Cen­ter for Pub­lic Pol­icy

Hunter smith

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