Jonathan Swan, Axios: "In terms of immigration, some scholars believe that you can get rid of first-born citizenship without changing the Constitution."
President Trump: "With an executive order."
Trump card: "Law."
Swan: "Have you thought about that?"
Trump card: "Yes."
Swan: "Tell me more."
Trump card: "I've always been told that you need a constitutional amendment. Guess what? You do not … you can definitely do it with a congressional act. But now they say that I can only do it with an order. Well, how ridiculous – we are the only country in the world where one person comes, has a baby and the baby has been essentially a citizen of the United States for almost 85 years, with all these benefits. "
– Trump interview with AxiosOctober 30, 2018
"Many gang members and some very bad people are involved in the caravan leading to our southern border. Please go back, you will not be admitted to the United States if you have not gone through the legal process. This is an invasion of our country and our military is waiting for you! "
– Trump TweetOctober 29, 2018
Laura Ingraham, Fox News: "What can the military do? Obama and Bush both sent the National Guard. It had no effect. "
Trump card: "But they are not me. This is the – I send the military on This is the military. And they stand there and we have one. If they get caught, we will not let them out. "
– Exchange on "The Ingraham Angle" at Fox NewsOctober 29, 2018
Trump talks about a big game in terms of immigration, but there is less than you think.
The president claims that he can end his first-born citizenship in the United States simply by signing an executive order. This is an extraordinary claim – never tried before courts and contradicted by the Ministry of Justice.
"You can not end your first-born citizenship with an executive order," said Paul D. Ryan (R-Wis.), Spokesman for the House. said Hours after the announcement of Trump.
Trump also says active military troops will wait on the border for the caravan from Central America if anyone tries to enter the United States. He hinted in Fox News that these migrants might be "captured" by the military.
But the 5,200 soldiers stationed at the border will not catch migrants. The Department of Defense says that these troops will operate under legal restrictions and offer a range of support services to the United States Customs and Border Guard, the agency that patrolls the Rio Grande and carries out border arrests.
We spend so much time reviewing Trump's claims about immigration. It's no surprise that this macho is being talked a week after the midterm elections. Let us have a look.
Trump's promised executive order would be challenged in the courts, and probably ordered until the case was resolved. The President's power to send troops to the border is out of the question, though he wrongly gives the impression that active troops are arresting or arresting people who are trying to enter the United States.
As for the President's claim that only the United States offers first-birth citizenship, this is completely wrong, as we have already reported. Thirty-three countries have similar laws, including Canada and Mexico.
Neither the White House nor the Department of Defense responded to our questions.
The 14th amendment was passed in 1868 and rejected the decision of the Supreme Court in Dred Scott Sandford, a judgment of 1857 that denied citizenship to people of African descent who were born in the United States.
The first sentence of the change seems pretty clear, but there are disagreements about its meaning because someone has put a vague clause in the middle.
"All persons born or naturalized in the United States, and subject to its jurisdictionare citizens of the United States of America and of the state in which they reside, "said the amendment.
The Supreme Court ruled in 1898 that this right to citizenship, Wong Kim Ark, who was born in San Francisco, covered Chinese citizens legally resident in the United States.
The court did not say whether the same right to the children of undocumented Immigrant. (This was not a matter in 1898.) However, the judges emphasized that the 14th Amendment was broadly worded and listed only a few exceptions to Primitive Citizenship, such as the children of Foreign Ministers or enemy armies on American soil.
"The fourteenth amendment confirms the old and fundamental rule of citizenship from birth in the territory, in the fidelity and under the protection of the country," wrote Judge Horace Gray for the court. This right includes "all children born here born of resident aliens, with the exception or qualifications (as old as the Rule itself) of children of foreign rulers or their ministers or enemies born on alien ships or within and during an enemy occupation of one Part of our territory and with the only additional exception of children of members of the Indian tribes who owe their direct allegiance to several tribes.
"The amendment includes, in clear words and with obvious intent, the children who are born in the United States of America of all other persons, regardless of the race or color of skin resident in the United States."
Then in the case of 1982 Plyler v. DoeThe court said Texas can not exclude the children of undocumented immigrants from public schools. The Supreme Court added that there was "no plausible distinction with regard to the 14th Amendment" jurisdiction "may be drawn between resident aliens whose entry into the United States was lawful and aliens whose entry was unlawful."
In 1995, the Justice Department's Bureau of Justice dismissed the idea that Congress could restrict EU citizenship through legislation (unless it was an injunction). Firstborn citizenship is enshrined in the constitution. The only way to change that is through a constitutional amendment. The then deputy attorney general Walter Dellinger wrote and said before the congress:
"The term" subject matter of its jurisdiction "should reflect the existing common law exception for discrete groups of persons considered to be under the influence of a foreign state and the only violation of United States laws, especially United States-born children of foreign diplomats In addition to these very limited exceptions, there can be no question that children born in the United States are subject to the unlimited jurisdiction of the United States, and as courts and lawyers have consistently acknowledged for more than a century "Especially through the Supreme Court in the United States against Wong Kim Ark, it is beyond dispute that they have constitutional citizenship under the Fourteenth Amendment Act."
He is not alone. "Firstborn citizenship is guaranteed by the Fourteenth Amendment," wrote James C. Ho, whom Trump later named the 5th Court of Appeals. "This birthright is no less protected for children of undocumented persons than for the descendants of Mayflower passengers."
"Opponents of illegal immigration can not claim to champion the rule of law and then propose policies in one go that violate our constitution," Ho wrote in a 2011 editorial in the Wall Street Journal.
The Supreme Court, however, could "set its own precedent in Wong Kim Ark and ruling that children of non-citizens are not first-born citizens, "wrote Martha S. Jones, a historian at Johns Hopkins University and author of" First-Birthday Citizens: A History of Race and Rights in Antebellum America. " on twitter,
"It would be a departure from the precedent, but it is possible," she said. Alternatively, the court could distinguish between the children of legitimate residents and those of undocumented migrants to solve the case in favor of Trump.
"In my view, this total or categorical exclusion contradicts the spirit of the 14th Amendment, which was intended to expand citizenship and open a path, especially for those who might otherwise be rejected for racism," Jones added. "The case used to be slaves."
Mark Krikorian, executive director of the Center for Immigration Studies, which advocates a stricter immigration policy, said he suspected the Supreme Court would overturn Trump's order. Even that would be a good result, as it would settle the debate once and for all, he said.
"I'm just saying that's ambiguous. It's not obvious, "said Krikorian. "These questions literally did not exist when this change was drafted and approved. The question is, what does the exception mean? "
Krikorian said that one of his main concerns is "birth tourism" or the practice of some parents traveling to the United States to give birth, secure American citizenship for their children and then raise those children in their home countries.
"These kids do not grow up as Americans," he said. "There is nobody who is in favor. While the boy of an illegal alien who goes to school every day says the Allegiance pledge, this boy is an American. That's a pretty nice situation. "
(There is no official estimate for childbirth cases.) In 2012, the Centers for Disease Control and Prevention estimated that around 8,000 women, who account for less than 1 percent of annual US births, provided a foreign address when completing birth certificate papers CIS 2015 produced a rough estimate of 36,000 babies born each year by foreigners.)
The Institute for Migration Policy says that "primary birthrate is not the driving force of illegal immigration" and that "most legal experts understand that lifting would require a constitutional change".
"In collaboration with researchers from Pennsylvania State University, the Migration Policy Institute (MPI) has determined that the termination of the first-birth certificate for US babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7 million by 2050 "Michael Fix and former President of the Institute wrote in 2015.
"The 14th Amendment provides for the firstborn citizenship," said Ted Cruz (R-Tex.) In an interview when he ran for the Senate for the first time in 2011. "I have looked at the legal arguments, and I am telling you, as a trial lawyer at the Supreme Court, that these arguments are not very good. As much as someone may reject the policy of birthright, so it is in the US Constitution. And I do not like federal judges lifting the constitution because their political preferences are different. And so my opinion: I think it's a mistake for conservatives to focus on fighting what the constitution says about firstborn citizenship. I think we are much better focused on securing the border. "(Cruz had a flip-flop in 2015, and Trump used it on Twitter.)
Military at the border
The Trump government will deploy 5,200 active troops at the southern border by the end of the week, as a caravan of nearly 3,500 Central American migrants slowly treading through Mexico poses a threat, according to Trump and other government officials.
This is in addition to the 2,000 National Guards who are already at the border. (And there is another caravan of 3,000 migrants following the first caravan.)
From a perspective perspective, the 7,200 soldiers stationed at the border are roughly equivalent to the US military presence in Iraq (5,200 soldiers) and Syria (2,000 soldiers) from August.
When Laura Ingraham, the Fox News anchor, asked what it was, George Trump asked how Presidents George W. Bush and Barack Obama sent the National Guard to the border and that it had "no effect," Trump said would be different now that he makes the decision. "If they get caught, we will not let them out," he said.
That's misleading. The Posse Comitatus Act of 1878 restricts what US forces can do to enforce domestic policies, including immigration laws.
"The armed forces do not seem to have a direct legislative mandate to protect the border, patrol or enforce immigration policy," said a April 2018 Nonpartisan Congressional Research Service report.
However, the Armed Forces can provide indirect support, the CRS report added. They can "exchange information gathered during the normal course of military operations; Rental equipment and facilities; offer expert advice and training; and maintain and operate devices ", for example.
"For federal law enforcement agencies, military personnel may be provided for the maintenance and operation of equipment related to anti-terrorist operations or the enforcement of drug abuse laws, immigration laws and customs regulations," the CRS said. "Military personnel under this authority are permitted to maintain and operate equipment only for specific purposes, including air reconnaissance and detection, monitoring and communication of air, maritime and land transport outside the United States or within 40 kilometers of the United States Limits if they are discovered outside the border. "
What the armed forces can not do is detain or frigate migrants, according to a federal law prohibiting the direct involvement of any Army, Navy, Air Force, or Marine Corps member in a search, seizure, arrest, or similar activity unless , participation in such activity by another member is permitted by law. "
Sarah Pierce, an analyst at the Migration Policy Institute, said she was "very sure they could not arrest or force anyone to immigrate."
She added that "the courts have ruled that the Navy is allowed to transport prisoners" so that the armed forces have the ability to "transport immigrants to detention centers or children." [shelters]as soon as they were arrested. "
Terrence J. O & # 39; s Shaughnessy, the head of the US High Command, said on October 29 in a press conference that the troops being sent to the border are armed and that "everything we do with the behavior agrees and holds. " to Posse Comitatus. "
O'Shaughnessy said the list of military resources being sent to the border includes "three highly skilled and capable combat battalions who are familiar with building temporary vehicle barriers and fencing"; "Aerospace, engineering, medical and logistic resources"; Black Hawk helicopters with night vision capabilities that can carry CBP personnel; "Military Police Units"; "Three C-130 and one C-17", which are military transport aircraft; and "usable medical units".
The Department of Defense has not responded as to whether any of these troops will be directly involved with migrants (though this does not seem to come from the comments of O & # 39; Shaughnessy) or how these costs are covered.
The Pinocchio test
It is unbelievable to imagine that the President could extinguish a more than one-hundred-year reading of the constitution with a single stroke of the pen. That's not how the government works.
The official position of the Ministry of Justice from 1995 indicates that Trump is doubly wrong: you can not erase citizenship with a congressional act or an execution order. The Supreme Court decisions in Wong Kim Ark and Plyler strongly suggest that the guarantor of the 14th Amendment also applies to undocumented immigrant children
Trump has made the Supreme Court more conservative, but conservative judges tend to interpret the Constitution as understood at the time of its drafting. So good luck with it.
The president warns that migrants could be "captured" by the military. That's not how the government works. The 5,200 soldiers stationed at the border can offer a range of support services, but US law explicitly prohibits them from participating in "search, seizure, arrest, or similar activities."
Trump's impressive remarks will start debates and arouse others' fears in some places, but they have little to do with the facts and deserve Three Pinocchios.
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