October 30, 2018

REPORT: Trump Targeting Birthright Citizenship With Executive Order. My first thought is that he can’t do this because of the 14th Amendment, but my second thought is that lots of constitutional rights that seem to me to be clearly established in the text have been interpreted away over the years. Hey, it’s a living Constitution, right? It must be informed by experience, and the needs of the day!

UPDATE: Am I kidding? Yes, and no. The Supreme Court precedent here doesn’t involve illegal immigrants and you can make a good argument that in adopting this rule the President is acting in a foreign affairs capacity — since he’s trying to discourage people abroad from coming here — and that gets a lot of judicial deference. Here’s some quick discussion of the law. I can certainly imagine a Supreme Court opinion holding that the core purpose of the birthright citizenry provision was to guarantee the citizenship of freed slaves, something not applicable here, and that the destabilizing effect of mass migration (see Europe), along with the foreign affairs component, demonstrates that the issue is best dealt with by the political branches.

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