JONATHAN TURLEY: Spoiling for a fight: Why challenging birthright citizenship is a win-win for Trump.
This week, the Trump administration doubled down in its fight against birthright citizenship. The usual alliance of pundits, professors and press lined up to declare any challenge to birthright citizenship as absurd. Yet the administration seemed not only undeterred, but delighted.
There is a reason for that euphoria: They believe that they cannot lose this fight.
The legal case against birthright citizenship has always been tough to make, given the long-standing interpretation of the Fourteenth Amendment in federal courts and agencies. Many in academia and the media have shown unusual outrage toward anyone questioning the basis for birthright citizenship as a legal or policy matter.
This is perhaps best evinced by Harvard Law Professor Laurence Tribe’s profane tirade the last time Trump raised this issue years ago: “This f—ing racist wants to reverse the outcome of the Civil War.”
Putting aside that the Civil War was fought over slavery, not immigration, many at the time would have disagreed that this was one of the outcomes of either the Civil War or the Fourteenth Amendment. . . .
Senator Jacob Howard, coauthor of the Fourteenth Amendment, said it was “simply declaratory” of the Civil Rights Act to protect freed slaves.
Howard assured senators, “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.” Likewise, Senator Lyman Trumbull, author of the 13th Amendment and the Civil Rights Act and a drafter of the Fourteenth Amendment, said that the six words included only those “not owing allegiance to anyone else.”
This debate has raged for decades. While Democrats today portray anyone supporting the narrower interpretation as a racist or nutty, it was not long ago that many Democratic leaders opposed birthright citizenship, including former Senate Majority Leader Harry Reid (D-Nev.). He later denounced his old position with the same passion.
Well, that’s our Harry. Plus:
So what makes this a win-win proposition for the Trump administration? The politics are stronger than the precedent.
Even if the administration loses before the Supreme Court, it will force Democrats again to fight against a tougher stance on immigration issues. Democrats maintained that position in the last election despite polling showing that 83 percent of Americans support deportations of immigrants with violent criminal records and almost half support mass deportation of all undocumented persons.
On birthright citizenship, roughly half of the country now opposes it, according to a recent Emerson poll. That is consistent with much of the world. The U.S. is actually in the minority on the issue.
Our closest allies in Europe reject birthright citizens and follow the common practice of “jus sanguinis,” or right of blood. We are part of a smaller number of countries following “jus soli,” or right of soil.
That is why the Trump administration may win either way. It will either secure a new interpretation from the high court or it could spur a campaign for a constitutional amendment. All of this could unfold around the time of the midterm elections, when incumbents of the president’s party are generally disfavored. This is a wedge issue that many in the Republican Party might welcome.
Indeed.