Former Trump NSC Spokesman Michael Anton: Citizenship Should Not be a Birthright

Not a cuck.

A Supreme Court confirmation fight always raises constitutional hopes and stokes constitutional fears. With one more justice, they'll repeal Obamacare! If they get one more justice, they'll overturn Roe v. Wade ! To arms!

These periodic, now-inevitable freak-outs are a sad by-product of our country's drift away from political rule and over-investiture of power in the judiciary. But happily, the most urgent constitutional challenge of our time needn't wait on a court ruling. Each political branch of government has the constitutional authority needed to fix it.

I refer, here, to ending birthright citizenship.

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity -- historically, constitutionally, philosophically and practically.

Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857's disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.

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Some will argue that the Supreme Court has already settled this issue, establishing birthright citizenship in United States v. Wong Kim Ark. But this is wrong. The court has only ruled that children of legal residents are citizens. That doesn't change the status of children born to people living here illegally.

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The problem can be fixed easily. Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States, and thus not citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that's unlikely.

It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens.

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Birthright citizenship was a mistake whose time has gone.

Although the courts would surely rule such an EO unconstitutional, Anton seems to be proposing that Trump dare them to so rule it, and he also seems to be arguing that the President, who is a co-equal partner with the Courts, insist that his authority is just as strong as the courts', and basically take the Jacksonian position vis a vis the courts. (IIRC: "The courts have made their ruling; now let them enforce it.")

Seems a bit unlikely, but I like where his head's at.

posted by Ace of Spades at 05:27 PM

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