Calm Down

Yesterday, the United States Supreme Court ruled that the immigration policies on citizenship of the last 140 years will continue.

Today, you’d think the nation was coming to an end. We’ve literally been implementing the 14th Amendment this way for, again, 140 years.

Having now read the full decision, did you know there were up to eight votes for the idea that illegal aliens could become citizens by being born in the United States? There might have been a ninth. As it were, there were six, not five, votes for the decision.

I bet you heard 5-4, but the people spinning you up did not tell you that even Clarence Thomas raised the possibility that an illegal alien born in the United States could be a citizen.

Six Justices, not five, definitely held that a child born in the United States to illegal aliens was a citizen. Justices Thomas and Gorsuch both, in their dissents, noted that a large number of children of illegal aliens would also most likely be citizens. Even Justice Alito suggested an unquantifiable number of children of illegal aliens would be citizens.

Many people who insist the 14th Amendment did not contemplate that because the author of the 14th Amendment insisted it did not apply to aliens have, for years, been played by anti-immigration activists who took the author out of context. Yesterday, several readers here cited the man’s comments. Under a fair and honest reading of the intent, language, and practice of the 14th Amendment, a lot of children of illegal aliens could be considered citizens.

The difference between the majority and minority was one of degree, not of absolutes. As Ed Whelan points out, under Alito’s dissent, a second-generation illegal alien (a child of two illegal aliens who were themselves born in the United States) would be an American citizen.

Additionally, Justice Kavanaugh, who gave the sixth vote in the decision, argued Congress could enact legislation to change the standard and, given Barrett’s tendency to side with Kavanaugh on these issues, could create a 5-4 decision that Congress itself, under section 5 of the 14th Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”), could impose restrictions.

I think Chief Justice Roberts’ opinion is overly broad and goes too far. It was not a good decision and Justice Thomas’s dissent of 91 pages was far more reasonable, based on history. But, again, even Justice Thomas left open the possibility that a large number of children of illegal aliens would be citizens.

In all the outrage over the majority opinion and the attacks on Justice Barrett for siding with it, I also think some blame must lie with President Trump. His syncophants will offer up no criticism, but it seems really clear to me that had the President’s executive order on illegal immigration focused on birth tourism instead of being as broad as it was, we’d probably have a 5-4 or 6-3 case in his favor.

The reality is that President Trump showed no restraint in his executive order. He took a maximalist position, and the Supreme Court swung hard in the other way. For those outraged by the Court’s decision, spare some rage for the President overplaying his hand.

It absolutely seems to me, in my reading of the opinion, that had the President more narrowly tailored his executive order to focus on birth tourism, he would have won.

But, let’s now deal reasonably, instead of hysterically, with what to do.

First, the flow of illegal aliens into the country has collapsed to negligible numbers. So securing the border mitigates that issue.

Second, the President could issue a new executive order on birthright citizenship to apply to American territories. It is an existing and well-settled piece of law that the 14th Amendment does not automatically apply to American territories. Much of the birth tourism industry focuses on Guam and other American territories in the Pacific. The President could use a narrowly tailored executive order in American territories to shut down birth tourism there.

Third, the Secretary of State, under existing laws, could crack down on pregnant women traveling to the United States to engage in birth tourism and use his clout to pressure foreign governments to help with compliance.

There are plenty of executive actions that could be taken without the hysteria of those online declaring an end to America.

Yesterday, the United States Supreme Court declared that the United States will continue interpreting the 14th Amendment as it has been interpreted for the last 140 years. That’s all that happened.

The President can continue to secure the border, deport illegal aliens, and crack down on birth tourism without running afoul of the Court’s opinion. The Congress, too, can and should crack down on birth tourism.

For all of you blasting the conservatives on the Court, remember that the President could have more narrowly tailored his original executive order. The maximalist position always tends to lose in the Supreme Court, and that’s the President and his advisors’ problem, not the Supreme Court’s problem.

Yesterday’s decision only came because the President went for broke. And he lost.

In the grand scheme of things, National Republican Senatorial Committee v. Federal Election Commission, also issued yesterday and pertaining to party committees coordinating with candidates, is a far bigger and more impactful decision than Trump v. Barbara, the immigration decision. But the latter provoked outrage from the right, even though the former will affect the country far more.