Ok so this one’s thorny, and deep in the weeds of policy debate and legalese, but stick with me, there’s some circular silliness in here that’s hard to top:
So this morning’s news cycle has everyone debating whether or not the executive order DearLeader has announced intent to sign is constitutionally within his reach. This conversation is playing in a number of different ways, publicly, dictated mostly by an individuals familiarity with the text of the 14th amendment. So let’s start there.
Section 1 reads:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, depending on the resolution of the conversation that you’re having, and who you’re having it with demographically, you may be talking about this from any number of angles, reaching from
*Whether or not amendments can be repealed by executive order (spoiler: they cannot)
*DearLeader’s motives for suggesting such an order at this particular moment (news cycle derailment is the prevailing theory)
*Which amendment the 14th even is (a pretty important one actually, from the Reconstruction era, not the initial batch)
But what they’re talking about in the WhiteHouse is Birthright Citizenship. Specifically, they’re talking about an executive order that explicitly revokes the settled law that U.S. Citizenship is guaranteed to every person born on U.S. Soil regardless of who their parents are and which state they’re born in. It’s the basis of YOUR citizenship, if you’re reading this. Really, it’s the ONLY thing that makes you a citizen, legally, unless you came to be an American via the green card lottery or elsewise immigrated to these shores. So this floated retcon isn’t just about some brown-skinned strangers far away. If you’re pregnant, this is very much about your child, if they’re sloppy in the way that they proceed. But that’s another rabbit hole, for another day, dependent on too many as-yet-unknowables to tackle here. So let’s recenter on the things that we CAN know: Birthright Citizenship is the constitutional provision that underwrites the grounds for legal citizenship. DearLeader’s bunch has a longstanding beef with that, because a side effect is, even if your parents aren’t citizens, being born here means their child gets to be. So the fly they’re swallowing this spider to catch, is that pathway to citizenship.
Let’s leave aside for a moment whether or not it’s legal and constitutional and can be accomplished by executive action. DearLeader seems to be guessing himself into confidence on that point, himself, saying “It was always told to me that you needed a constitutional amendment. Guess what? You don’t. You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order. It’s in the process. It’ll happen . . . with an executive order.” So we’ll leave white house lawyers some time to navigate that maze.
What matters is the conclusion they’ll come to, and the argument they’ll make.
When all the proud know-nothings have blustered themselves out, the ones left standing in that room will be the one or two smart people arguing that Birthright Citizenship is NOT implicitly guaranteed by the 14th amendment, and therefore an order or an act of congress nullifying that policy has a chance to pass a **Now With 100% More Kavanaugh** Supreme Court challenge. The argument that THOSE people will make, is that while YES it’s true the amendment says explicitly that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” and that may LOOK pretty ironclad, there’s one word in there they can play with. Jurisdiction.
“Subject To The Jurisdiction Thereof”
A linguistic flourish of an afterthought? Maybe. More likely it was written as an explicit reassurance to the reconstruction era electorate, that this new amendment wasn’t about to fold Native Americans into the fabric of the nation alongside former slaves, which was a hard enough sell at the time, that it would require a whole other amendment just to let THOSE people vote.
The smartest racists in the room will argue that on THIS turn of phrase, rests their authority to deny the citizenship of what they call “Anchor Babies,” finally stemming this tide of brown migration from the South, by removing both the path and the incentive that a lot of families use to make the trip.
They should be careful though, as often happens, when we swallow spiders to catch flies. See, the smartest racists in the room’s argument is – because these migrants aren’t citizens, they don’t fall under U.S. laws. They aren’t “Subject To The Jurisdiction Thereof.” They should be careful, because it’s that Jurisdiction that underwrites deportation and all immigration law. Things they kinda sorta like…
Apparently the smartest racist in the room still isn’t smart enough to tie his shoes.
Now, one last thing before we turn the page on this obvious pre-election stunt. Yes, it’s a move to shift the news cycle against white right-wing terrorist attacks against minorities-at-large. Yes, it’s an obviously unconstitutional move, not even worth floating in any serious way… Except, is it?
Remember, as of this American moment, we are a full One Party State. Republicans loyal to the president control both House and Senate, hold a majority of governorships across the USA, the White House, and as of quite recently, a clear majority in the U.S. Supreme Court.
The nature of power isn’t something that we talk about a lot in the U.S. because traditionally we’ve been a nation that valued its laws. But power, really, only comes down to two things: “Who will follow your lead,” and “Who will oppose it?” The Law can, and often does, guide those decisions, as do forces like institutional inertia and tradition and so on. But at the end of the day, in Cleveland, flouting ordinance, ladies still wear shiny black shoes, and high society in Hartford pays a dear friend of mine every single day to train their dogs, despite a standing city ordinance that bans the education of canines. A law – all law – is only more than an idea if the institutions tasked with its enforcement decide to penalize infractions, when it breaks.
If the answers line up right; if those answers hash out something like this, for instance:
Q: “Who will back your plays?”
A: 42.3% of the voting public, both houses of the congress, and the us supreme court.
Q: “Who will oppose them?”
A: A staggering number of people who, while they’re legally correct, have no particular position or authority that might make their disapproval matter in this case.
Then the more relevant questions to be asking today really are these:
Q: “If a law falls in the woods and no one with the power and mandate to enforce it, even minds, does it matter that it’s a law?”
Q: “To discourage desperate migrants from crossing the Rio Grande, is it worth crossing the Rubicon instead?”
I guess we’ll see.