Who Is Good Enough to Be Treated with Respect? (Birthright Citizenship, "Skin in the Game," and Harming the Weak)

As soon as Donald Trump signed his executive order last month purporting to end birthright citizenship, the smart money was on the Supreme Court finding a way to ignore more than a century of settled constitutional law and give Trump what he wants.  The same Court that abetted his reelection at every step and then shocked everyone by inventing an excuse to give him presidential immunity would surely not disappoint him on an immigration-related issue.  Who cares how much rewriting of the law would be required?  And who cares that finding in favor of Trump would inflict gratuitously cruel harm on vulnerable people in the real world?

Any time it becomes obvious that the Court will soon be looking to invent new law, people will come out of the woodwork to offer some "innovative" take on the issue.  That is one way that "off the wall" ideas become "on the wall," in Jack Balkin's famous formulation.  That it took a full 26 days for a Trump-friendly effort to show up on The New York Times's op-ed page is thus, if anything, an indication that this effort might be a bit more difficult than even the most willing minds might have expected.  But in any event, we saw the first attempt this past Saturday: "Trump Might Have a Case on Birthright Citizenship."

I have no desire to get into a personal exchange with anyone on this matter, so I am not going to identify the authors by name and then say "Smith & Jones say X" and "Smith & Jones fail to say Y."  (Obviously, anyone who cares can find their names with one click.)  There is nothing personal here.  My focus is the argument, not its provenance.

And the argument is, to be blunt, weak in every way.  Even so, my ultimate point here is much larger, so after running through the anti-birthright citizenship argument, I will expand the focus to look at how that argument compares to another attempt to write certain (poor and vulnerable) people out of the American legal system.

The NYT op-ed purports to base its questioning of the established view of birthright citizenship on the theory of originalism, which is of course standard these days in conservative legal scholarship in the US.  In a recent law review article, Professor Dorf and I summarized a voluminous literature showing that the central move of the currently favored style of originalism (known as Original Public Meaning originalism, or OPM) is to pretend to eschew intent-based analysis but then rely on appeals to the framers' and/or ratifiers' supposed subjective intent when the chips are down.

And it happens again here.  The op-ed says that the proper inquiry is "the original public meaning of the text," but only two sentences later, we get this: "At the time of its adoption, the publicly known purpose of the 14th Amendment was to extend the benefits of the social compact" (italics added).  Why was it necessary to go to the well one more time for this bait-and-switch?  Possibly because the words "subject to the jurisdiction thereof" have a pretty plain meaning that is contrary to the Trump position.  Just a thought.

Fudging the OPM/purpose distinction is damning, but because that cheat is such a well-worn tactic of purportedly OPM analysis, it would hardly be worth writing about here if there were not more to the story.  I will note that, if we are going to look at the "purpose" of the 14th Amendment's language re citizenship, an actual legal historian recently posted some original sources on what I believe is a private listserv (and therefore not cite-able here) showing that the Reconstruction Congress initially considered a draft that applied only to people born to citizens or permanent residents, but that version was expressly rejected on the ground that it was too narrow.  Yes, it is sometimes difficult to determine intent, but when a legislative body expressly rejects specific language, we are on much firmer ground in saying that we might not know with certainty what Congress wanted to do, but we at least know what it chose not to do.

I will also direct readers to Dorf on Law guest blogger Jacob Hamburger's recent post laying out all of the pragmatic problems that would come with adopting Trump's preferred policy, including confusion about how (and where and when) people could obtain and present the necessary documents to prove that the parents of a newborn baby are eligible to give birth to a US citizen.  To quote just one part of that excellent post:

[I]mplementing Trump’s order will impose an unnecessary amount of additional paperwork—ironic for an administration that claims to believe in “governmental efficiency.” A further irony is that naturalized citizens and permanent residents, who receive documentation through the immigration process, would likely have a much easier time proving their status than many native-born U.S. citizens who may only have a birth certificate.

So the NYT op-ed in question is not off to a good start. At most, it might be based on the assumptions that the words "subject to the jurisdiction thereof" can be given any meaning that the Court wants, that "purpose" only matters when its invocation favors Trump, and that the practical implications for real people are irrelevant to constitutional interpretation. That is a lot, but it gets worse.

To put the point bluntly, when the op-ed gets around to saying that the key constitutional language might not be as clear as everyone has assumed, the argument boils down to a dressed-up version of the old anti-immigration standby: "What part of 'illegal' don’t you understand?"  It truly is that basic.
 

The op-ed's argument ultimately hinges on the word "amity," which is drawn from a 1608 case by an English jurist who was, the op-ed assures readers, "a legal thinker revered by the framers of the Constitution."  Of course, we are not talking about the framers of the Constitution but the framers of the Reconstruction Amendments eighty years later.  Even ignoring that problem, what is amity and why does it supposedly matter here?

The op-ed cites what it calls an "opinion" by Abraham Lincoln's Attorney General, which was not a judicial opinion but simply something that a member of the executive branch wrote at some point.  Why quote from what is at best persuasive authority?  The op-ed says that an "allegiance-for-protection theory" emerged at that time, for which the op-ed then relies on Blackstone: "Allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully."

Sounds good, in a head-nodding sort of way, but where is this going?  Because the US is not a monarchy (at least to this point), "[i]n the American Republic, where the people are sovereign, the allegiance expected of a citizen was obedience to the laws."  And here is where "amity" comes in, which means that we are almost to the "what part of illegal don't you understand" payoff to the argument.  That 1608 English case, we are told, "explained that foreigners who came in 'amity' — friendship — gave a 'local' allegiance to the sovereign and an 'obedience' to the laws while residing in his realm such that they were entitled to the protection and benefit of those laws."  Finally, we get to the big finish:

Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?

Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity. They gave no obedience or allegiance to the country when they entered — one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws.

In other words, no one who came to the US and stayed there in violation of immigration law can, in the view of the op-ed, ever be deemed to live in the country "in amity," because they violated that one law.  But "amity" is a made-up requirement, and in any case, what about Blackstone's formulation that "so long as [the prince] affords protection, so long the [subject] will demean himself faithfully"?  Can an immigrant demean himself faithfully, or (as the op-ed puts it at a different point) "enter into the social compact and give allegiance without being a citizen"?

We know as an empirical matter that the people whom Trump calls "illegals" commit crime at much lower rates than US citizens and documented immigrants.  We know that they pay taxes, not only sales taxes but payroll taxes to support Social Security and Medicare, even though their immigration status means that they will not qualify for benefits under those programs.  That seems like rather persuasive evidence that those people are trying to enter into the social compact.

Perhaps most importantly, none of these people would claim that they could not be prosecuted under the laws of the US for any crime that they have committed.  If anything, they are desperately asking to be subject to US laws, and even when they are prosecuted under the immigration laws, they do not claim (as a diplomat or an invading soldier would claim) that the US cannot legitimately impose its domestic criminal laws on these immigrants.

In other words, even if the proper inquiry were whether a person arrived "in amity," the op-ed's only argument is that any violation of any law disproves amity per se, no matter what else a person might do to show that they are attempting to show allegiance and be an obedient resident of the country.  To be clear, even when we are not talking about people who could qualify as refugees, these are human beings who completely uprooted their lives and traveled thousands of miles to start over.  They would of course have eagerly entered without putting themselves on the wrong side of the immigration law, had that route been available, but they are doing everything possible under the circumstances to deal with their situation by saying, "I know I'll have to leave if it comes to that, but I truly want to be part of America."

Again, the op-ed's argument is based on a simplistic, binary view of obedience.  You either are obedient, or you are not.  Should that mean that everyone -- including natural-born citizens who have committed crimes and whose lineage goes back to the Mayflower (at which time their forebears were invading a new land without legal status) -- are thus removed from the group of people who are allowed to stay?  If so, even pardons would not seem to fix the problem, because the issue is supposedly whether or not the person violated US law, full stop.  Perhaps Charles Kushner could ask his hosts in Paris whether he can stay there.

I readily concede that the current Supreme Court might in fact have five or six members who could adopt the op-ed's argument as a way around the established view of birthright citizenship.  If there are, however, it will be because they have nothing better and will use whatever arguments are available as a means to an end, not because the argument adds up even on its own terms.

As I noted above, the argument that I summarized here notably overlaps with another right-wing talking point.  Most famously during Mitt Romney's failed 2012 presidential bid, we have been told that because 47 percent of Americans "pay no taxes," those people had no reason to engage with the political system in the ways that a good citizen should engage.  Lacking that oh-so-important "skin in the game," they were essentially sponges who would not vigilantly man the ramparts of American democracy to keep the government honest.  Why should they care?  The government costs them nothing, right?  The idea, then, is that those deadbeats have no business voting, because they are not true citizens.

I have explained many times over the years that every aspect of that claim is wrong, including the idea that in fact some percentage of people pay no taxes.  Everyone (including immigrants of whatever legal status, as noted above) pays local, state, and federal taxes.  Some fraction of people do not pay the federal income tax, however, because Congress has decided that some working people make so little money that we should not make them even worse off.  In fact, the Republican House and Senate that passed the only meaningful piece of legislation in Trump's first term included provisions increasing the number of people who pay no federal taxes.

Of course, all of that is beside the point, because the people who currently pay no federal income taxes -- or even someone who truly pays no taxes at all -- have every reason to remain engaged with the political process.  Political decisions can change what we owe in taxes, so even the most purely selfish person would have a reason to keep tabs on their government's policy decisions.  Indeed, the many, many corporations that are able to reduce their tax liabilities to zero do not immediately disband their lobbying operations, even though some of those corporations not only pay zero taxes but actually receive net subsidies.  It is simply not true that anyone would have a reason to say, "I'm doing OK now, so I'll disengage as a citizen because nothing can change that would make me unhappy."

Again, however, it is not all of the people who are supposedly paying no taxes who are the subjects of Republicans' derision and disrespect.  It is only those who are so weak and disadvantaged that they are too poor to cross the threshold for paying federal income taxes.  Similarly, the idea on the right is that the desperate and scared -- but optimistic and demonstrably pro-American -- people whom Trumpists hate for being in the country without legal authorization are not worthy of our sympathy precisely because they are weak and disadvantaged and thus were not able to get to the US on an H1-B visa or by marrying a reality TV star.

This is hardly a new game.  Criminal defendants (like the Central Park Five) are deemed by people like Trump to be presumptively guilty and unworthy of receiving due process, but wealthy criminals can delay and buy their way out of trouble.  It is new and troubling, however, to see this double standard applied in the birthright citizenship context, where the very evidence that a person passionately wants to be part of America is used to justify saying that their US-born children cannot be citizens.  That violates more than a century of jurisprudence, and it is despicable in its casual cruelty.