WSJ editorial: Rewriting the 14th Amendment - Trump order on birthright citizenship violates the Constitution.

Pres­i­dent Trump re­ally, re­ally wants to make the midterm elec­tion about im­mi­gra­tion, and for a while it looked like he had an edge due to De­mo­c­ra­tic ex­cess. But with this week's pre-elec­tion vow to end birthright cit­i­zen­ship in Amer­ica by ex­ec­u­tive or­der, Mr. Trump has dri­ven into his own con­sti­tu­tional ditch.

Mr. Trump has the po­lit­i­cal high ground as long as he is try­ing to stop law­less­ness or de­ter mi­grant car­a­vans mo­bi­lized by left-wing groups in Cen­tral Amer­ica. Even de­ploy­ing sol­diers to the bor­der in non­mil­i­tary roles can be jus­ti­fied to as­sist im­mi­gra-tion agents over­whelmed by asy­lum seek­ers. The U.S. has to send a sig­nal that no one can bum-rush the bor­der—not least to de­ter mi­grants from mak­ing a trip that will end in dis­ap­point­ment, or worse.

By con­trast, the birth cit­i­zen­ship gam­bit puts Mr. Trump on the wrong side of im­mi­gra­tion law and pol­i­tics. Did Michael Co­hen give him this le­gal ad­vice?

The right to cit­i­zen­ship for any­one born on U.S. soil is de­rived from the Four­teenth Amend­ment adopted in 1868: "All per­sons born or nat­u­ral-ized in the United States and sub­ject to the ju­ris­dic­tion thereof, are cit­i­zens of the United States and of the State wherein they re­side." This is the com­mon law doc­trine of jus soli, or right of the soil.

Op­po­nents of birth cit­i­zen-ship try to ob­scure this plain mean­ing by in­ter­pret­ing "sub­ject to the ju­ris­dic­tion" as ap­ply­ing only to those who owe al­le­giance to Amer­ica. Be­cause alien par­ents owe al­le­giance to a dif­fer­ent sov­ereign, the ar­gu­ment goes, their chil­dren have no right to cit­i­zen­ship.

But "ju­ris­dic­tion" is well un­der­stood as re­fer­ring to the ter­ri­tory where the force of law ap­plies, and that means it ap­plies to nearly every­one on U.S. soil. The ex­cep­tions in 1868 were diplo­mats (who have sov­ereign im­mu­nity) and Na­tive Amer­i­cans on tribal lands. Con­gress later granted Na­tive Amer­i­cans birth cit­i­zen­ship while di­min­ish­ing tribal sov­er­eighty.

The ju­ris­dic­tion of U.S. law surely ap­plies to all im­mi-grants, or they could not be pros­e­cuted for break­ing even im­mi­gra­tion laws. As for ow­ing al­le­giance, do we re­ally want to set a prece­dent that has the gov­ern­ment defin­ing which Amer­i­can res­i­dents owe al­le­giance to the U.S. and which don't? What would that mean for Amer­i­can cit­i­zens who are also cit­i­zens of an­other coun­try?

The very pur­pose of the Four­teenth Amend­ment was to pre­vent politi­cians from deny­ing cit­i­zen­ship to those they thought weren't Amer­i­can enough. This meant for­mer slaves, but in the de­bate over the amend­ment the ques­tion of cit­i­zen­ship for im­mi­grant chil­dren was raised di­rectly. As David Rivkin and John Yoo have re­counted, Penn­syl­va­nia Sen. Edgar Cowan asked: "Is the child of the Chi­nese im­mi­grant in Cal­i­for­nia a cit­i­zen?" Sen. John Con­ness of Cal­i­for­nia re­sponded yes.

The Supreme Court re­in-forced that mean­ing in U.S. v. Wong Kim Ark (1898) by up­hold­ing the cit­i­zen­ship of a child born in San Fran­cisco of Chi­nese par­ents barred from cit­i­zen­ship by the Chi­nese Ex­clu­sion Act. The Court wrote that "the 14th Amend­ment af­firms the an­cient and fun­da-men­tal rule of cit­i­zen­ship by birth within the ter­ri­tory, in the al­le­giance and pro­tec­tion of the coun­try, in­clud­ing all chil­dren here born of res­i­dent aliens."

Mr. Trump may imag­ine the cur­rent Supreme Court would rule dif­fer­ently. We doubt it. Jus­tices who con­sider them­selves loyal to the Con­sti-tu­tion's plain text would have a hard time read­ing the word "al­le­giance," with all its am­bi­gu­ity, into the Four­teenth Amend­ment. Mean­while, lower courts are likely to rule against his ex­ec­u­tive or­der faster than they did Barack Oba­ma's law­less or­ders grant­ing work per­mits to mil­lions of il­le­gal aliens.

Mr. Trump may imag­ine the cur­rent Supreme Court would rule dif­fer­ently. We doubt it. Jus­tices who con­sider them­selves loyal to the Con­sti-tu­tion's plain text would have a hard time read­ing the word "al­le­giance," with all its am­bi­gu­ity, into the Four­teenth Amend­ment. Mean­while, lower courts are likely to rule against his ex­ec­u­tive or­der faster than they did Barack Oba­ma's law­less or­ders grant­ing work per­mits to mil­lions of il­le­gal aliens.

If Mr. Trump wants to end the prac­tice some­times called "birth tourism," he can al­ways draft and cam­paign for a con­sti­tu­tional amend­ment. But Con­gress is un­likely to agree and pass a law, much less an amend­ment. So he is mak­ing this fu­tile ges­ture of an ex­ec­u-tive or­der a week be­fore Elec­tion Day.

Mr. Trump made a po­lit­i­cal mis­take this year by not trad­ing le­gal sta­tus to adult im­mi­grants brought here il­le­gally as chil­dren for more bor­der se­cu­rity. Then Re­pub­li-cans could have run on an im­mi­gra­tion ac­com­plish­ment. In­stead he wanted the po­lit­i­cal is­sue, and we'll soon see how well that worked.

The Pres­i­dent still stands on firm le­gal and po­lit­i­cal ground when he fights sanc­tu-ary cities or the abo­li­tion of U.S. Im­mi­gra­tion and Cus­toms En­force­ment. But he un­der-mines his le­gal stand­ing, and his po­lit­i­cal cred­i­bil­ity, when he pulls a stunt like sin­gle-hand­edly try­ing to re­write the Four­teenth Amend­ment.

This Wall Street Journal editorial, denouncing Trump’s outrageous attack on our Contitution, appeared on October 31, 2018.

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October 31, 2018

Post Script. When the WSJ says Trump "has driven into his own constitutional ditch," you know how unhinged the #BeastintheWH is. He is ranting to rouse his deplorable tribe with hatred for immigrants. He is ranting to claim his power is without limits.

Time to fill that ditch he has driven into with our own #BlueWave.

Have you made plans to take friends & family with you to the polls? Are you working to Get Out The Vote?

Nov 6 #StopTrump #GOPEndBegins #ItIsUpToUs


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