Immigration Laws and the Onslaught of Unintended Consequences 2

To the ongoing annoyance of his arch-enemies in the media, President Trump likes to avoid their attempts to nail him on specifics with a blithe "We will see what happens."  The media, of course, would prefer him to spell out his plans in nauseating detail, the better for them to be torn apart by a pack of rabid wild dogs wearing press badges.  Instead, Donald Trump wisely prefers to keep his enemies on the back-foot, unpreparedly reacting to whatever shocking and unexpected thing he just did or said.

As both a tactic and a strategy, it's worked amazingly well - indeed, one could fairly say it swept him both to billionaire status and to the White House.  Mr. Trump may indeed plan, though we see little solid evidence of it; but he certainly doesn't fall into the common trap of being captured by his plans.  Instead, he seems to choose destinations, then opportunistically move in their general direction as the occasion presents itself.

This can be annoying on those occasions where he stakes out a specific policy - "We're gonna build a wall and make Mexico pay for it!" - which he manifestly has failed to do.  Yet that was not merely a policy; it was the embodiment of a principle, namely, that we need to defend our borders and somehow staunch the invasion of illegals across them.

Do Americans want a wall?  Not particularly.  What they really want is an absence of illegal immigrants - and in a larger way, an absence of unassimilated immigrants who proudly and defiantly speak their own languages, wear their own clothes, and keep to their own cultures.  About all we want from foreign lands is the cuisine and the clothes, thank you very much.

So given that Mr. Trump has, in fact, not built the promised wall, it seems logical that he'll instead proffer a longtime wish of anti-illegal-immigration fundamentalists: an end to the automatic birthright citizenship that enables so many illegals to swim the Rio Grande, drop a baby on this side, and then take root protected by their infant's shiny new U.S. passport.

There is, to put it mildly, legitimate debate as to whether he can legally do this of his own accord.  Our view is, generally, that he can, because the idea of birthright citizenship for illegals was never intended by the authors of the Constitution or its amendments and makes no logical sense.

...the term “subject to the jurisdiction” of the U.S. was understood at the time this Reconstruction era amendment was adopted “to mean not owing allegiance to any other sovereign.”

It seems rather obvious that children born to aliens who are in this country either legally or illegally are citizens of the native countries of their parents. Those children owe political allegiance to their parents’ native countries and thus are not within the political jurisdiction of the U.S. As Andy points out, if a “child is born in France to a married couple who are both American citizens, the child is an American citizen” and thus “subject to the jurisdiction” of the United States.

The fact that any alien in the U.S. is subject to our territorial jurisdiction, and can therefore be prosecuted for breaking our laws, does not make them subject to the complete, political jurisdiction of the U.S. They owe no allegiance to the U.S. government and can’t be drafted into the military (if we re-imposed a draft); can’t be forced to serve on a jury; don’t have all of the same obligations, responsibilities, and rights that citizens do.

In reality, Donald Trump can sign whatever pieces of paper he pleases; it remains to be seen what the largely-leftist government bureaucrats will actually do about them, to say nothing of the courts.

But for the sake of argument, let's suppose that Mr. Trump does sign this executive order, the Executive Branch agencies knuckle under, and our newly-minted semi-conservative Supreme Court rules it valid.  How, exactly, is this going to work on the ground?

Citizenship: Black, White, and Read All Over

What makes someone a U.S.citizen?  The Constitutional definition is surprisingly silent: although the original text referred to U.S. citizens as holding the various guaranteed rights, it never defined what precisely this meant.  Assuming that the Founders intended their new nation to generally follow British tradition of the day unless otherwise stated, citizenship would be determined by jus soli, or place of birth.  That would support the idea of birthright citizenship.

But the Constitution gave Congress the power to provide a more detailed definition, which Congress briskly did: in 1790, Congress passed naturalization laws decreeing the legal principle of jus sanguinis, or blood relationship. This gave citizenship to a child born in a foreign country if the father was a citizen of the United States (too bad, Mom!)

The Fourteenth Amendment built on this somewhat contradictory foundation:

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. [emphasis added]

In all cases, the emphasis is clearly on "birth." And for all non-naturalized Americans alive today, that's the key element in proving citizenship: their birth certificate, which is why the shadowy existence of Barack Hussein Obama's birth certificate was such a long-running issue.

Ever since U.S. passports began to be commonly issued and eventually required for international travel, obtaining one has depended primarily on production of a U.S. birth certificate.  Yes, there are alternatives - naturalized citizens who were born abroad and instead provide the certificate of naturalization, and children born abroad to U.S. citizens need a certificate of American birth provided by their local consulate - but for nearly all common usage, the birth certificate is The Document.

But anchor babies are physically born in the United States.  If they weren't, there wouldn't be a problem.

So let's suppose that President Trump declares babies born to illegal immigrants to not be citizens themselves, and let's generously imagine that the bureaucracy goes along with him.  How, exactly, are they going to enforce it, when everybody has the exact same document?

It's not as if they are issued by a central organization with clear standards:

In the United States, all vital events are local. What we see as national vital statistics start out as births, deaths, terminations of pregnancy, marriages, and divorces that are registered locally. There are 57 vital registration jurisdictions in the United States: The 50 states, 5 territories (Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands), the District of Columbia, and New York City. Each of the 57 jurisdictions has a direct statistical reporting relationship with the National Center for Health Statistics (NCHS). Some of the states have centralized vital records offices, but most have local registrars who receive, register, and issue certified copies of vital records. There are over 6,000 local vital registrars nationwide. [emphasis added]

Yes, the statistics are collated up the line; but the certificates themselves come from a wild variety of localities in all manner of different formats.  Even at that, they've been important for well under a century.

What's more, many local laws allow for birth certificates that are both entirely legal, and entirely false: specifically for adoptees, whose birth certificate will ordinarily show the names of the people adopting them who most certainly did not give them birth.  That quirk, indeed, led to one of the theories about Mr. Obama's origins.

More recently, birth certificates now can legally give evidence which is both factually and demonstrably false: many states allow the mentally deluded to file for an amended birth certificate reflecting a change in gender, thus resulting in a document which may or may not match their personal plumbing and most definitely would be contradicted by a simple genetic test.  Yet it is on this surprisingly flimsy basis that our whole apparatus of legal citizenship identity documentation rests!

Now, there are a couple of possible approaches.  One would be for authorities to simply not issue birth certificates for babies born to illegals; indeed, some hospitals in Texas are doing just that.  Illegal parents would need to take their baby to their own nation's consulate and obtain a "Certificate of Birth Abroad" establishing their child as a citizen of their home country.

There's no chance it would ever work this cleanly, though.  For one thing, is there the slightest possibility that "sanctuary cities" would stop issuing U.S. birth certificates to anchor babies?  Of course not - many blue states issue drivers licenses to illegals who make no pretense of having been born here or of being eligible to vote.

For another, why would illegal parents, who by definition care nothing for laws at home or abroad, exercise the due diligence of establishing their baby's citizenship in a country they don't want to be in?  By not doing so, they leave their child a stateless person, which in our modern political climate actually gives them more rights: you can only deport someone to their country of nationality, thus a stateless person cannot be deported at all.

Cures Worse than the Disease

We could go further.  If we are to have national citizenship - which we do - one could make the argument that the Federal government ought to be in charge of issuing all required documentation of it.  The Feds already issue Social Security cards based on provision of a birth certificate - maybe they could do both?

But there is absolutely no way this could be accomplished by executive order.  It probably couldn't even be done with a law duly passed by Congress: all powers not explicitly granted to the Feds by the Constitution are reserved to the states or the people.  Even with the overgrowth of our central government over many years, no one has seriously suggested that it holds this particular power.  National federal birth certificates are a non-starter.

There's another alternative: to make a birth certificate no longer sufficient proof of U.S. citizenship.  Indeed, our State Department has been taking steps along this road:

His official American birth certificate shows he was delivered by a midwife in Brownsville, at the southern tip of Texas. He spent his life wearing American uniforms: three years as a private in the Army, then as a cadet in the Border Patrol and now as a state prison guard.

But when Juan, 40, applied to renew his U.S. passport this year, the government’s response floored him. In a letter, the State Department said it didn’t believe he was an American citizen.

As he would later learn, Juan is one of a growing number of people whose official birth records show they were born in the United States but who are now being denied passports — their citizenship suddenly thrown into question. The Trump administration is accusing hundreds, and possibly thousands, of Hispanics along the border of using fraudulent birth certificates since they were babies, and it is undertaking a widespread crackdown.

The famously-porous U.S.-Mexico border provides ample opportunities for fraud, and given the widely distributed issuance of birth certificates, it's unsurprising that certain corrupt doctors in the area decided to make a fast buck by creating false American records for people actually born in Mexico.

Yet as in this case, horrible injustices are the foreseeable result.  Obviously the baby is no party to the crime, and if not promptly caught, they could grow up and spent large portions of their lives secure in the knowledge of their U.S. citizenship - only to discover in middle life that this was based on quicksand.  What a ghastly thing to happen to anyone!  It's bad enough to deport people who grew up here knowing that they were doing so illegally; what about those for whom the news comes as a complete shock?

When Juan, the former soldier, received a letter from the State Department telling him it wasn’t convinced that he was a U.S. citizen, it requested a range of obscure documents — evidence of his mother’s prenatal care, his baptismal certificate, rental agreements from when he was a baby.

Quick reality check: how many of those documents could you lay hands on?  Your humble correspondent happens to know both the hospital in which he was born and the church in which he was infant-baptized, so it might be possible to round up the paperwork - assuming nothing's happened to the archives over the ever-growing number of decades.  Decades-old rental agreements, seriously?  Telephone or other utility bills?  What sort of pack-rat hangs onto all that crap - and how many companies are still in business after all that time, having not purged their moldering records years ago?

And that's for people with U.S. birth certificates, and under legal doctrines that consider those sufficient proof of citizenship.  To instead require proof of citizenship for one's parents would, in many cases, make the problem worse.  Not for me personally: my birth certificate clearly states my parents' names, and both hold U.S. passports which could be produced, but how many others could say the same?

Most Americans aren't that detailed about their paperwork: two-thirds of us have never held a passport, and an increasing number of trendy home births might not even have an attending physician to attest to the paperwork.  The local registrar might accept a squalling newborn as evidence and issue a birth certificate, but demands for more proof would be impossible to meet.

More Power to the Third Branch

It should be obvious where this is going to end up, as with most controversial issues in modern America: in court.  Juan wisely decided he needed legal help in resolving his citizenship questions, and assuming he can pony up the tens of thousands of dollars in legal fees, will someday most likely obtain a formal court ruling declaring him to be a U.S. citizen.

This, of course, is a game at which the Left are the masters: consider the hordes of lefty "public-interest" lawyers, the sort who front Constitutional lawsuits for foreigners who have announced their intention to become illegal immigrants but haven't even accomplished even that much.  It won't take them long to file citizenship suits in friendly blue-state courts, obtaining rulings on citizenship for as many anchor babies as they can hoist from the shadows - and, once granted, international law rightly makes it extremely challenging to strip a citizenship from someone.

So, to sum up: Mr. Trump's mooted executive order, while well-meant and logical, has next to no chance of actually accomplishing its intended purpose on the ground.  At best, it will wreak chaos and confusion, which might be fun to watch for a while but which will inevitably harm countless innocents, creating martyrs the leftist media will gleefully promote sympathetic coverage of night and day.

At worst, it might result in a Supreme Court, appalled by the anarchic results, ruling that birthright citizenship is in fact required by the Constitution, returning us to the original problem without even a theoretical path to a solution.

Is this just another of Mr. Trump's weapons of mass distraction, so effective against his opponents?  Possibly.  But when the dust clears, regardless of whether he accomplishes anything useful at all, a ghastly precedent will have been established.  We'll work our way toward the logical end as we move forward in this series.