Posted on by rjonakait

Born Right

The Supreme Court recently heard arguments concerning Trump’s Executive Order redefining birthright citizenship, “Protecting the Meaning and Value of American Citizenship,” signed on his second first day in office.  The legality of the order was not the issue before the Court. Instead, the arguments were about the propriety of temporary nationwide or universal injunctions prohibiting the enforcement of Trump’s order. The order’s status and the injunctions raise important legal questions, but I set off on flights of fancy and started to ruminate about possibilities if that Executive Order were in effect.

I quickly realized that my birth certificate would now be deficient for citizenship purposes. As the EO recognized, the Fourteenth Amendment states: “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.” My certificate says that I was born in Sheboygan, Wisconsin, which, to the surprise of some, is part of the United States. That has been sufficient to prove my citizenship, but not under the possible new regime.

The Executive Order went on to say, “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” Trump further elucidated his understanding of the Fourteenth Amendment: “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Trump defines two groups of people (he suggests there are more with the phrase “among the categories of individuals”) not granted the privilege of citizenship by the Constitution. (The EO opens: “The privilege of United States citizenship is a priceless and profound gift.” The citizenship granted by the Fourteenth Amendment is not a privilege or a gift. It is a constitutional right.) To authenticate my citizenship, I would now need to know more than my birthplace. I would also need to know the citizenship or immigration status of my parents, but my birth certificate, and no doubt yours, does not include that information. Given the implied goals of the current administration, I, a critic of that administration, could be deported if I could not prove my parents’ immigration status and hence, my own citizenship. Far-fetched? I hope so.

The EO, however, gives no indication of how the now-crucial fact of the parents’ status will be determined. The birth attendants—doctors, nurses, midwives—are not experts in immigration matters. Whoever fills out the documents would no doubt get the information from the mother and father. Will the parents’ assertions be sufficient? Will there be someone to challenge what a parent claims, or will the proffered information be simply accepted?

 What if the father is not present? Can we accept the mother’s word both as to who the father is and his status? For citizenship in the past, we did not need paternity tests. Will we need them in the future? And what if this is a birth through an (anonymous) sperm donor?

The EO does not explain who makes the citizenship determinations? Or when? A person deemed a noncitizen should have the right to contest that conclusion. That probably cannot be required during the time the person is an infant, which should mean that people prior to reaching adulthood must have a forum in which to establish they are citizens. This, of course, will be a generation after birth, and that will surely present all sorts of problems.

The Executive Order’s definition of birthright citizenship means many people who were assumed to be citizens were not born citizens. I may not be a citizen if my parents did not have proper status. I assumed my parents were citizens because they, too, were born in Wisconsin, but that birth location is not enough. We may have to know the citizenship and immigration status of their parents. And so on. The Executive Order seeks to untangle that jumble of umbilical cords by saying that the order “shall apply only to persons who are born within the United States after 30 days from the date of this order.” That makes sense from a practical perspective. We can somehow, even if not now clear how, start to record the necessary information for each new birth. But if the EO is followed, we will have two kinds of citizenship —  citizens before 2025 and citizens thereafter — something that can’t be found in the Fourteenth Amendment. All this seems to produce a larger mess than even DOGE could create.

There is a way to handle this problem. Legislation could make all those born before 2025 in the United States citizens without going through ancient birth and immigration records. Oh, wait. We already have such a law. A 1952 statute, 8 U.S.C. 1401, states in part: “The following shall be nationals and citizens of the United States at birth: a person born in the United States, and subject to the jurisdiction thereto.”

This statutory provision has meant that the children of illegal immigrants born in the United States are citizens. Trump might say that those who drafted and passed this law accepted this position only because they were following an incorrect interpretation of the Fourteenth Amendment. Even if that were so, the clearly evident public meaning of the statute and the intentions of the drafters and adopters of it were to give birthright citizenship to those born here including children of undocumented immigrants. Conservative interpretive principles mean that neither courts nor an executive order can change the law’s meaning understood and intended by those who enacted it even if the statute, like many others, was based on an incorrect premise. If a statute is invalid because of a faulty foundation, our lawbooks will soon be a lot thinner.

If Trump really wants to change birthright citizenship, Congress needs to pass a new law that tracks Trump’s Executive Order. Gee. I wonder why he hasn’t proposed the new legislation.

Posted on by rjonakait

Snippets

The famous definition says insanity is doing the same thing over and over expecting different results. I have been experiencing a variation of that:

I had hoped when Trump lost in 2020 that he would fade away. My hopes were not fulfilled. I had hoped that when he won in 2024, his increased experience would mean that he would show more knowledge and spew out less, how shall I put it, hooey. My hopes were not fulfilled. I had hoped that his supporters would now recognize the hooey and say something about it or, at least, not be taken in by it. But, of course, that didn’t happen.

I was reminded of this when a conservative website attacked the “Meet the Press” host for being deceptive in her interview with Trump. The president-elect told Kristen Welker that he planned to get rid of birthright citizenship. She responded that the 14th Amendment says, “All persons born in the United States are citizens.” The right-wingers rightfully called Welker out on this because she did not cite the 14th Amendment language that gives birthright citizenship to people born here only if they are “subject to the jurisdiction” of the United States. The conservative complaint about Welker, however, did not complain about Trump. For years he has said that he plans to eliminate birthright citizenship, but he still does not seem to know what the 14th Amendment says (or anything in the Constitution for that matter). He responded to Welker’s statement with a simple “Yeah.” You might have thought that he would immediately correct Welker, but he did not. Instead, he went on to say that we are the only country with birthright citizenship. That is hooey. He then went further and said that “if somebody sets a foot, just a foot, one foot, you don’t need two, on our land, ‘Congratulations you are now a citizen of the United States of the United States of America.’” That is so many plops of hooey that it is knee high. But while Welker was called out, the conservatives did not call out the person who will be president and has and will take an oath to the Constitution. I don’t think that I am insane, but I did foolishly hope for different results and more sanity.

When I watch “Antiques Roadshow,” I find out that I am much like many of the objects brought for appraisal—I have “condition issues.”

She was visibly upset when she came into his office. The teacher assumed that she was reacting to the election results from the day before, but he still asked. She said that she had helped her parents vote. She explained that they were born in China, and because they spoke little English, she was allowed to aid her mother and father in the voting booth. Each had voted for Trump. She started to cry in the teacher’s office, and between sobs said that after leaving the polls, she asked how they could do that. Did they not know what Trump would do to them if he could? Her mother responded, “At least he’s not Black.” The parents had been urging their daughter to go to a college near their Philadelphia home. The high school student said that she was now determined to go as far away as possible.

The spouse regularly seeks bargains for gasoline. She will wait a long time in line idling at Costco to save a few cents a gallon. When driving, it is amazing how many prices she spots, eagle-eying servicing stations. To the delight of all traveling in her vehicle, she comments, often with a surprised tone, on at least 90 percent of them. (I do confess that I might do something similar.)

The childhood death rate started to increase in 2019 before the Covid pandemic began and while Trump was president. It increased 18 percent between 2019 and 2021, which was fueled by more gun and drug deaths. Predictions about what happens in the next Trump presidency?

Posted on by rjonakait

Snippets

          A friend who spends time in winter in Florida said that he hoped that I could join him next year because there is a trivia night in some establishment where he goes. He is under the mistaken impression that I am still good at answering obscure, meaningless factual questions. I once was, but the times and trivia have changed. The bar I sometimes hang out in has a Tuesday trivia night. Usually I play tennis that night, but occasionally when tennis is cancelled, or I have some injury, I go to the bar and join a trivia team captained by the bartender. But I have become convinced that only those who are under 35 or 40 would know most of the answers. The trivia concerns TV shows or music or celebrities from the last twenty years, and I seldom know the answers. Hell, most of the time I do not even know who the people are being asked about. Almost none of the questions are about history or literature or geography. Occasionally, I do know an answer, but often bartender Brian or another teammate also has it. I consider it a good night if out of fifty questions I can come up with one or two answers they otherwise would not have. Worst of all, however, is when there is a question that an old guy ought to get, and they look at me, and I have that senior moment not being able to come up with something that I know is there, but it stays on the tip of my tongue. I could come up, for example, with “The Teenagers,” but could not retrieve “Frankie Lymon” as the singers of “Why Do Fools Fall in Love.” Trivia used to feed my ego because I was better than most. Now it makes me feel not just inept but old and inept. I only want to participate in a trivia contest if there is a chance that the correct answer is Bucephalus, Traveller, or Tony. That’s not the kind of questions that Trivia Joe asks at my local biergarten.

          When I want to feel special, I tell myself that I am one of the few people who knows that Tarzan lived in Wisconsin.

          In absolving himself, President Trump referred to it as a “foreign virus.” Do all viruses have a nationality? Would our government’s response have been different, or would the coronavirus be less threatening if it were an American virus? What kind of walls are being planned to keep out the illegal foreign viruses? Can a foreign virus get a visa to enter the United States? If that virus is here long enough, can it get a teeny, tiny green card? Does a second-generation virus in America get birthright citizenship? And by the way, nuclear bombs and other nuclear weapons were first developed in the United States. Should we refer to all nuclear weapons no matter where manufactured as “American nuclear weapons?”

“Power does not corrupt men; fools, however, if they get into a position of power, corrupt power.” George Bernard Shaw.

Are you, like me, surprised by how well Vice President Mike Pence has performed at those news conferences? Are you then dismayed by being pleased by a performance that any competent politician—any competent person—ought to be able to do? Are you then shocked, and a little frightened, by how far the competency bar has fallen?

He scowled at the barometer: “Will it rain?”

None heard, with all that pattering on the pane.

John Frederick Nunes