Why Trump shouldn’t touch birthright ci­ti­zen­ship


When­ever I talk about im­mi­gra­tion is­sues, I try not to let peo­ple see that tat­too on my fore­head, the one with the Statue of Lib­erty wrapped in a copy of the 14th Amend­ment. It’s a con­ver­sa­tion killer.

But there’s no avoid­ing the fact that my day job has a strong in­flu­ence on the way I view Pres­i­dent Trump’s an­nounced de­ci­sion to get rid of birthright ci­ti­zen­ship, some­thing which has been fairly set­tled law for over a cen­tury.

That is, un­til the topic of il­le­gal im­mi­gra­tion be­came a use­ful ar­row in the cam­paign quiv­ers of both par­ties. The GOP, which used to have a healthy ap­pre­ci­a­tion for the con­tri­bu­tions of im­mi­grants to so­ci­ety, has mor­phed into the party of “they all killed Kate Steinle.” And the Democrats have re­acted by do­ing ab­so­lutely noth­ing, even when they were in the ma­jor­ity, to al­le­vi­ate the prob­lems caused by a bro­ken bor­der and in­ef­fec­tive laws that par­a­lyze fam­i­lies and the econ­omy.

It was in­evitable that im­mi­grants would once again be­come that con­ve­nient po­lit­i­cal foot­ball, raw meat for the so­cial me­dia masses.

I’m hip to the games peo­ple play, and I usu­ally ig­nore the com­ments about crim­i­nal aliens, gang mem­bers, racist Repub­li­cans and the like. That’s be­cause I’m an im­mi­gra­tion lawyer and know a lot more about the in­ner work­ings of the laws and the real world im­pact on peo­ple like my clients than the Face­book schol­ars who keep post­ing links on my page about “birth tourism,” which I thought was what hap­pened when Mary and Joseph were scout­ing out a room at the inn.

If that makes me sound pre­ten­tious, so be it. I tend to hide my law de­gree un­der a bushel un­til I hear some­thing that twists my lower in­tes­tine into a pret­zel.

And my lower in­tes­tine is ready for some mus­tard this week, be­cause the drum­beat of “elim­i­nat­ing birthright ci­ti­zen­ship” has got­ten louder. The use­ful im­agery of the car­a­van at our south­ern bor­der was di­min­ished some­what by the in­ter­ven­ing tragedies of the pipe bomber and the mur­der­ous anti-Semite in Pitts­burgh. So the White House did a mas­ter­ful pivot, and raised the specter of scary “an­chor ba­bies” and the harm they pose to good, de­cent Amer­i­cans.

The term “an­chor baby” was coined about 20 years ago, but it re­ally gained promi­nence in 2006 when the coun­try was em­broiled in a de­bate about com­pre­hen­sive im­mi­gra­tion re­form. When I first heard it, I en­vi­sioned Wal­ter Cronkite with a bib and a rat­tle, un­til I re­al­ized that this deroga­tory term was be­ing used to de­note a child born in the United States who would be able to con­fer ben­e­fits upon an il­le­gal alien par­ent.

By 2006, I had been prac­tic­ing im­mi­gra­tion law for over a decade, and knew that there was no such thing as a baby who could im­me­di­ately le­gal­ize mommy and daddy. In most cases, that child needed to reach the age of 21 be­fore he or she could spon­sor a par­ent for law­ful per­ma­nent res­i­dence or “the green card,” so it ap­peared to me as if that an­chor were about as heavy as a feather.

Then, pro­po­nents of the term started talk­ing about all the gov­ern­ment ben­e­fits that baby could get, which are re­ally just the same ben­e­fits any U.S. cit­i­zen is en­ti­tled to re­ceive.

And ka­boom!, the whole is­sue of birthright ci­ti­zen­ship reared its anachro­nis­tic head. Since the time of the Civil War, the 14th Amend­ment has held that any per­son born in the United States and “sub­ject to the ju­ris­dic­tion thereof” is a na­tive born cit­i­zen. Now, Trump and his friends who want to elim­i­nate birthright ci­ti­zen­ship or “ius solis” are say­ing that the chil­dren of il­le­gal aliens are not “sub­ject to the ju­ris­dic­tion” of the U.S. and there­fore not en­ti­tled to ci­ti­zen­ship. I’m hav­ing a hard time try­ing to fig­ure out how an il­le­gal alien who com­mits a crime in the U.S. is not “sub­ject to the ju­ris­dic­tion” of our laws, and I’m sure all of those peo­ple wor­ried about their daugh­ters be­ing raped by MS-13 mem­bers are equally in­ter­ested.

But even if this were a le­git­i­mate ar­gu­ment, there are a lot of prob­lems with the way that the White House is ap­proach­ing it. First, you don’t fix a pol­icy prob­lem by eras­ing parts of the Con­sti­tu­tion with that pen you swiped from for­mer Pres­i­dent Barack Obama. Sec­ond, you gen­er­ally don’t ig­nore the clear word­ing of a statute un­less there is com­pelling ev­i­dence to the con­trary. And most im­por­tant, you don’t dare change the thing that makes us ex­cep­tional: the fact that prince and pau­per, in­valid and healthy, black man and white woman, are equally en­ti­tled to the great gift of ci­ti­zen­ship.

Lay off my Con­sti­tu­tion, Mr. Pres­i­dent.

Copy­right 2018 Chris­tine Flow­ers. Flow­ers is an at­tor­ney and a colum­nist for the Philadel­phia Daily News, and can be reached at cflow­ers1961@gmail.com.

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