In a previous Special Bulletin, we briefly addressed the proposal made by Donald Trump (and supported in varying degrees by some other Republican candidates) to eliminate “birthright citizenship.” Birthright citizenship, as everyone must know by now refers to citizenship conferred on anyone who is born in this country without regard to the citizenship or status of his or her parents.
In our Special Bulletin posted on August 18, we wrote:
The grant of citizenship to persons born in this country is clearly provided by the terms of the 14th Amendment and, whether one agrees or disagrees with that provision, there is, as a practical political matter, no chance whatever of passing a constitutional amendment to revoke it. Accordingly, to urge that such an amendment be passed, or even considered, merely inflames passions without serving any useful purpose.
We believe that analysis was essentially correct and we stand by it. On the other hand, the legal issue may less clear-cut than we suggested, and we thought that we owed readers some further explanation and discussion.
On August 18, Trump asserted that children of illegal immigrants are not citizens: “I don’t think they have American citizenship and if you speak to some very, very good lawyers — and I know some will disagree — but many of them agree with me and you’re going to find they do not have American citizenship.” The Wall Street Journal, among others, was not impressed. In an August 20 editorial, “Born in the U.S.A.,” the Journal argued:
Mr. Trump may pay for top-flight attorneys in his real-estate dealings but his constitutional counsel isn’t so hot. In 1868 the U.S. adopted the Fourteenth Amendment to overturn the Dred Scott decision. As school children learn but too many adults forget, the Supreme Court had held in 1857 that the descendants of slaves, even free blacks, could not be American citizens.
So far as we know, no one has stepped forward to claim the roll of Trump’s constitutional counsel, and we do not know, any better than the Journal does, who they might be. Nevertheless, there have been respectable and respected voices from the legal community who have, in the past, argued that it would be permissible for Congress to legislate restrictions on birthright citizenship. Such voices have included Prof. Peter Schuck of the Yale Law School and Richard Posner, an influential judge on the United States Seventh Circuit Court of Appeals. In a lengthy dictum in a 2003 case, Judge Posner described the policy of birthright citizenship as “nonsense” and suggested that “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” So, what is the argument?
The first sentence of Section 1 of the 14th Amendment provides:
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.
The heart of the issue involves the meaning of the qualifying phrase “subject to the jurisdiction [of the United States].” It has long been understood, and the Supreme Court held in an 1898 case, that the exception was based on English common law and was intended to deny citizenship to three groups, children of (1) Indians (until granted citizenship by statute in 1924); (2) foreign diplomats; and (3) enemy forces engaged in hostile occupation. Challengers of birthright citizenship point out that the 1898 case, United States v. Wong Kim Ark, did not involve children of illegal immigrants and they are correct. Wong Kim Ark was born in San Francisco to Chinese parents who were not citizens but were lawful residents. On the other hand, there is nothing in the lengthy opinion of the Court that, in our view, indicates that the Court would have broadened the exception to include children of illegal aliens. On the contrary, interpreting the exception clause, the Court seemed clearly to find “jurisdiction” to be essentially a matter of geography.
On balance, we continue to believe that the 14th Amendment does confer a right of citizenship on children of illegal aliens born in this country, but we acknowledge that the constitutional question may not be entirely free from doubt. As a political matter, however, the issue clearly remains one that we think Republicans would be ill-advised to pursue. Passage of legislation denying citizenship to children of illegal aliens would doubtless require not only a Republican President but a Republican majority large enough to cut off debate in the Senate. And even if those conditions were met, the legislation would face a controversial path through the courts with an ending uncertain at best. In short, it appears to be a largely chimerical quest. At the same time, while continued attacks on birthright citizenship might generate enthusiasm among the nativist elements of the Republican Party, they would further alienate the Latino community. As Governor Kasich recently put it, the issue is a “stumbling block” that the Republican Party should leave behind.
Finally, even if accomplished, the revocation of birthright citizenship would do little to resolve the larger immigration problems with which we continue to struggle. The best estimate of children born to illegal immigrants each year is approximately 300,000, but such children are not “anchor babies” as many understand the term. Contrary to a popular perception, having a child who is a citizen confers no benefit on the child’s parents until the child reaches 21 and is able to be a sponsor. The term “anchor babies” should also not be confused (as Governor Bush recently appeared to) with “birth tourism,” a practice by which middle- and upper-class visitors, most often Asian, travel to the United States legally, on tourist visas, to have a baby here.
In the case of illegal immigrants, there is no reliable evidence as to how many come to the United States for the purpose of having a child who will enjoy the benefits of citizenship. In any case, the fundamental answer, in our view, is more effective border control coupled with comprehensive immigration reform. If that is ever accomplished, it may be possible to consider the merits and demerits of birthright citizenship in an atmosphere less fraught politically. Opponents of birthright citizenship have pointed out that the United States is one of relatively few countries that recognize such a right. On the other hand, as The Wall Street Journal retorted, “The immigration hawks are correct that birthright citizenship is unusual among nations, but since when did Republicans dump their belief in American exceptionalism?”
The term dog days originated in Greek and Roman times from the rising of the dog star Sirius, just before the sun, in the summer months. In modern times, dog days have been understood to refer to the hot and sultry days of summer when temperature and humidity may have a depressing effect on dogs—and their owners. Politically, the dog days of summer are a time when typically not much happens (except in an election years when national party conventions are held then). Congress flees the Capitol and campaigning generally produces little in the way of lasting news. Is this year different? It may appear so, but one hopes not.
Part II. Ukraine and the Search for a Strategy
Back on June 4, we posted Part I, “The Islamic State and the Search for a Strategy” and promised that Part II would deal with Ukraine and Eastern Europe. After a somewhat longer interval than anticipated, we turn now to Part II. As it happens, little appears to have changed with respect to Ukraine and Eastern Europe since our previous post. Ukraine, and more broadly Eastern Europe, seems to have slid largely out of political and public consciousness. Yet that part of the world continues, in our view, to represent a highly dangerous situation that is almost certain to appear as a new crisis at some point. Continue reading
In July, we were on vacation in Europe, actually an expedition to celebrate our 50th Wedding Anniversary, and we made little effort to absorb political insights along the way. For example, the conundrums of the Greek economy, refugees flooding the continent, and the question of whether the United Kingdom will remain in the European Union, seemed as vexing at closer range as they had from afar. We did, however, observe the presence of a large rhinoceros outside the Musee d’Orsay in Paris. We harbored no illusion that there was any political significance to that handsome statue, but one does tend to take signs and portents where one finds them. Continue reading
As noted in Blog 74, Part II, we are about to depart on vacation with plans to return in August, Before leaving, however, we wanted to say a word about Donald Trump.
We like to think that we take a realistic view of the world but we have to admit that we have been in denial on the subject of Donald Trump. We have not mentioned his candidacy in the naïve hope that it would disappear on its own. It is now clear that is not going to happen. We still believe that it is highly unlikely that Trump will become the Republican nominee, but there is an increasingly serious question as to how much embarrassment and damage he will do to the Republican Party along the way. Our answer is, too much. Continue reading
Part I. The Affordable Care Act and Same-Sex Marriage
The end of the Supreme Court term produced two major decisions, on the Affordable Care Act and same-sex marriage, that generated extensive comment by politicians and pundits and drew attention in every form of media. There is little need at this point for extended discussion or analysis of the decisions, but we will offer some brief comments on them in this Part I. In Part II, we will comment on several other cases that we think might be of interest to our readers.
King v. Burwell: The Affordable Care Act
In upholding subsidies for purchasers of insurance on federal (as well as state) exchanges, the Court preserved the life of the Affordable Care Act (ACA) in more or less its present form for the indefinite future. The 5-4 decision of the Court reached that result by describing the language of the most relevant clause as “ambiguous” and then looking to what it determined to be the overall intent of the Act. From a standpoint of lawyerly (or judicial) analysis there is much to say in criticism of the Court’s approach and the dissents said it all in rather stinging terms. We believe that the dissents made a strong case and that the challenge to the Act was by no means as frivolous as the Obama administration sought to portray it. On the other hand, as we observed in a March 8 Special Bulletin, the flaw in the statute was not dispositive, that is, it could not be said to compel the desired outcome.
Chief Justice Roberts, as the author of the majority opinion, was the focus of many attacks for once again having saved the ACA by means of creative interpretation–as he had in the Sibelius case in 2012 where he had upheld the ACA by characterizing it as a “tax.” One may speculate (and it is no more than speculation) that in this case as in Sibelius, Roberts was influenced by a belief that, if possible, the fate of so major a piece legislation should lie in the hands of the political branches rather than the Court. It is also possible that Roberts here, and in Sibelius, wished to spare the Court as an institution from becoming the central issue in a presidential campaign.
In any case, the decision was something of a gift to Republicans. As we had pointed out in the March Special Bulletin:
[D]isposing of [the ACA] by way of a decision in King might have seriously adverse consequences for the country and the party. If the plaintiffs prevailed, there are any number of ways in which the Act might be fixed or replaced, but the prospect of getting any of them through our dysfunctional Congress is daunting. It would not be done quickly or easily, if at all….In the meantime, millions who are presently insured would be unable to afford insurance and would be forced back into the ranks of the uninsured. That would be a recipe for chaos and hardship and the blame for failing to provide a remedy would likely fall on the “governing party” in Congress. Thus, if Republicans listen to their heads and not their hearts, they should perhaps hope (albeit secretly) that Obamacare once again survives its encounter with the Supreme Court.
Subsequent to the decision in King, it has been widely reported that many Republicans came to the same conclusion.
None of which is to say that the ACA will not or should not be an issue in the 2016 election. While it has not been the unmistakable disaster that many predicted, it does have major flaws, some of which were noted in a recent posting of The Daily Dish. The Daily Dish is published by the American Action Forum, headed by former Congressional Budget Director, Douglas Holtz Eakin, and a recent posting summarized some of the current problems with the ACA:
Repeatedly in recent weeks, one has heard columnists, pundits and the president assert that “In many ways this law is working better than it’s supposed to.” Usually the focus is on the reduction in the uninsured, skipping past what a low bar for success this is: if you make it illegal to be uninsured and give people money to buy insurance, there better be fewer uninsured. But……
- Premiums are higher and deductibles are larger than was promised or would be under better reforms;
- The landscape is littered with expensive mandates;
- The promise of bending the cost curve remains unfulfilled;
- Being insured has not guaranteed actual access to providers; and
- Obamacare is damaging the labor market, businesses and economic growth.
On the other hand, it has become clear that Republicans cannot get along indefinitely by merely mouthing the slogan, “Repeal and Replace.” Increasingly, they will be under pressure to add some flesh to the bones of “Replace.” In this connection, we would urge them to consider our February 5 Guest Blog by Jeff Bauer, “Redirecting Health Reform: A Real Republican Opportunity.”
Obergefell v. Hodges: Same-sex Marriage
We should say at the outset that we yield to no one in our regard for traditional marriage. In fact, we are celebrating this year the fiftieth anniversary of our own share of that institution. It might also be said that when we began this illuminating journey, it would not have occurred to us that there was any other kind of marriage. Over the years, however, our view evolved, (much as the President’s did, but a bit more swiftly) and we came to believe, as a majority of the public now do, that there is no valid reason to deny the benefits of marriage to same-sex couples.
That said, we did have some reservations as to whether it was appropriate to recognize a constitutional right to same-sex marriage. We had reservations as to whether such a major step should be taken by the Supreme Court, as a matter of constitutional interpretation, rather than leaving it to the states and their legislatures, which were already moving in that direction. In the hands of the dissenting justices, our reservations became strong objections expressed in vigorous and sometimes strident terms. Nevertheless, we were, in the end, persuaded by Justice Kennedy’s majority opinion that a ruling on constitutional grounds was appropriate.
It is worth noting that despite the harsh tone of the dissents, they were mercifully free of the homophobic flavor found in some of Justice Scalia’s previous opinions. (For example in Lawrence v. Texas, “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”) The dissents also gave little weight to the tiresome and groundless argument that permitting same-sex marriage would some how undermine traditional marriage. Only Justice Alito referred to this argument and did so in a relatively neutral way:
The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.
Justice Alito is obviously correct that the effect of same-sex marriage on traditional marriage, if any, will not be known any time soon. In our view, however, common sense suggests that any effect is far more likely to be positive than negative. (We have never been able to imagine the scene in which Harry says to his fiancée, “Well, Sally, I know we’re engaged, and want to raise a family, but now that Tom has married Bob, and Susie has married Helen, I don’t think there’s really any point in our getting hitched.”)
The dissents expressed concern as to the impact that the ruling may have on the religious freedom of those who disagree with the ruling and who retain on religious grounds a belief that only a union between a man and a woman qualifies as a “marriage.” As Chief Justice Roberts explained:
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage….The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage….There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
We take the Chief Justice’s concerns to be sincere, but in our view they are exaggerated–as judicial predictions of dire consequence found in dissenting opinions often are. To begin with, the recognition of same-sex marriage does not, by itself, create remedies for discrimination; those must be provided by separate laws. Such remedies already exist in a number of states and, as Roberts acknowledged, include accommodation for religious practices. The decision in Obergefell may or may not provide a stimulus for more laws, state or federal, against discrimination, and thereby generate more controversies, but if it does there is no reason to fear that such controversies cannot be resolved, as they have in the past, in a manner that gives due regard for religious freedom.
As a political matter, the ruling received a uniformly negative response from Republican candidates for president. That is not surprising in a party where the latest polls show same-sex marriage approved by only 34%. It thus appears to be yet another instance in which Republicans are swimming against the tide. Same-sex marriage is approved not only by 65% of Democrats but by the same percentage of Independents. Nevertheless, there is an important difference as to how different candidates reacted. Governor Bush, Senator Rubio and Governor Kasich all indicated their disagreement with the decision but recognized that it reflects the law of the land and indicated a desire to turn to other issues. On the other hand, other candidates came forth with a variety of bizarre responses: Governor Scott Walker called for a constitutional amendment to overturn the decision; Senator Ted Cruz suggested that states that were not parties to the case ignore the ruling and called for periodic “judicial retention elections;” Governor Mike Huckabee suggested that civil disobedience might be called for; and Senator Rand Paul suggested that states cease issuing marriage licenses to anyone.
In the days preceding the Supreme Court’s decision, The Washington Post’s Daily 202 bulletin predicted that, if the Court recognized a right to same-sex marriage, support for a constitutional amendment would be important to conservatives and might even become a litmus test in GOP primaries. We do not generally think much of litmus tests, but we are willing to make an exception in this case for a reverse litmus test: We will not support any candidate who proposes a constitutional amendment to overturn the decision in Obergefell or urges that it be ignored or defied. We take that position not only because any such response would be a thoroughly bad on idea on the merits, but also because, having no chance of being implemented, it would be simply a crude and cynical gesture to the evangelical Christian segment of the Republican base. We have had quite enough of those, thank you very much.
The outrage in Charleston provoked a flood of commentary on two of the most difficult issues in American life: race and guns. If the brutal murder of nine people in a church resulted in some lasting progress on those issues, it would provide a memorial to the victims that could offer some comfort to their families and friends. Unfortunately, however, the likelihood of forward movement in either area is uncertain at best. Continue reading
In our June 20 Special Bulletin, we reported on the action of a House subcommittee in eliminating funding for two programs for family planning. One of our readers inquired in a published comment where the “media involvement” was, and two days later The New York Times weighed in with an editorial, “Republicans Take Aim At Poor Women.” Now, The Huffington Post reports that a Senate subcommittee has taken action that is less draconian but similarly misguided: Continue reading
The Republican Majority for Choice (RMC) reports that a subcommittee of the House of Representatives has voted to eliminate funding for programs for family planning and teenage pregnancy prevention. We join RMC in believing that this is a serious mistake and have set forth below the full statement by the RMC.
The program for family planning under Title X is a long-standing one, having been enacted in 1970 under President Richard Nixon. As described by the Department of Health and Human Services (HHS), the program operates through family planning centers: Continue reading