Fourteenth Amendment

President Trump and his administration repeatedly talk about an immigrant “invasion” happening in this country.  The “invasion” was recently cited by his administration as a basis for the threat to suspend habeas corpus.

On Thursday the Supreme Court will hear a case about the court’s power of injunction, which basically is the power of a court to require or prohibit action of the parties. The issue is whether the injunction applies to non-parties. The injunction at issue is an executive order from the President ending birthright citizenship.  Courts have stopped its enforcement because of its blatant unconstitutionality.  His claim of an “invasion” is the pretext, long planned, for the order.  

The Fourteenth Amendment to the U.S. Constitution says: “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In 1895, a 21-year-old United States citizen, born in the State of California, was expelled from his home country on the grounds that although his parents were residents of California, they were citizens of China, and by ethnic transmission his allegiance was to the Emperor of China.

He had left home and travelled by boat to China to see relatives. When his boat returned to port in San Francisco, he was not permitted entry into the US.  This man was barred from the country even though “ever since his birth, [he] had but one residence, to wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States”.

The 14th Amendment means what it says.  As the Supreme Court in United States v. Wong Kim Ark stated, “Citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.”

The phrase “Subject to the jurisdiction of the United States” also has a plain meaning. The Wong Kim Ark Court stated “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.”

Why does the government insist, despite the clear text of 14th Amendment, that it does not protect the citizenship of people who are born here? Because of that “invasion” they keep talking about.  This President wants to go back to the parents’ ethnicity controls. If foreign parents give birth to a child here, that child’s allegiance will always be to their nation of origin or race.  That’s what the government in Wong Kim Ark argued.  And this is how the President sees it too. 

On this point, the Wong Kim Ark Court also had something useful to say: “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to  deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”

The President does not see European immigration as the problem. He has often lamented that not enough of our immigrants come from Europe but instead from “shithole countries”.

10 years ago, questioning the constitutional right of birthright citizenship would have been laughable.  Now, the President believes he owns the Court. And the Court has given us reason to believe he’s right.  Thanks to the Court, this President enjoys immunity to commit crimes with impunity.  

Will this country continue to be governed by the Constitution and centuries of legal tradition, or will we instead release all national power to a single man who is trying to extinguish American liberty?