-
Racial Discrimination or Reparations?
“This is not a race issue” said even Hawaiian Republican party leaders as they denounced a local white resident’s actions. But race is indeed the issue, and a new lawsuit seeks to challenge it.
Hawaii basically gives away land, in one of the most expensive states in America, but only to people of the designated ethnicity, in this case those with at least 50 percent Native Hawaiian blood. It functions like reparations. For those sidelined, it looks like the kind of reverse discrimination prohibited by the 14th Amendment. How does Hawaii get away with this?
The 18th and 19th centuries were a pretty solid time for powerful white men. They could write a Constitution granting themselves inalienable rights while ensuring a grotesque global system of slavery prospered. They could march west taking whatever land they wanted, killing Native Americans or dumping them on reservations. They could use Chinese immigrants to do dangerous work building railroads and then exclude them from the U.S. by law. And in 1893, white sugar cane plantation owners from the mainland U.S., aided by U.S. Marines, forcibly took over the Hawaiian kingdom, granting themselves the rights to land and power as they saw fit. They later persuaded the U.S. government to annex Hawaii and then later make it a territory ruled by Washington, all without the voice of the Hawaiian people represented. Locals were by and large impoverished in the process.
Then in 1921 the Hawaiian Homes Commission Act was passed by the U.S. Congress as a form of reparations. The law set aside roughly 200,000 acres of Hawaiian land taken by the federal government to offer via 99 year at one dollar per year leases to Native Hawaiians. It was the Act’s goal of preserving the land for Native Hawaiian beneficiaries in perpetuity; you cannot even inherit the land from a Native Hawaiian leaseholder unless you also qualify racially. So the children of a 50 percent Hawaiian lease holder (i.e., perhaps 25 percent Native blood) get to keep the land, and whatever home, farm or factory the parent built on it, while their children at say 12.5 percent Native blood, have to give the land back to the government after the parent’s death. The system is so designed to make sure while extended relatives of Native Hawaiians are cut off, the land eventually circulates back to whatever 50 percent Natives are left. It is possible Hawaiians will intermarry with other races in sufficient numbers that someday no 50 percenters will be left and no one has fully decided what happens then.
The next problem came from the land itself. A complex bureaucracy was set up to administer the program, slowing any transfer to Native Hawaiians. In addition, in the early days, much of the land was not desirable. It was mostly far away from the few towns on the islands, and usually lacked water, sewer, electricity, and paved road access. As cities grew out to meet the once rural land, it became valuable to those who were interested in more than subsistence farming. The current waiting list for a piece of land has over 29,000 names. The person at the top of the list for Oahu has been waiting since 1979 for his chance to come up. Worse yet, if someone on the list has children with the right amount of Native blood, they inherit his place on the list, meaning you can stay buried numerically on the list even after people once in front of you are literally dead. Meanwhile, new people continue to add their names.
As to the value of the land as reparations for what the white people did to Hawaii in 1893, that is questionable. Many of the Native Hawaiians on the list are poor. Native Hawaiians experience poverty at rates higher than many other groups in the state; they use SNAP (the Supplemental Nutrition Assistance Program, formerly food stamps) at disproportionately high rates compared with their share of Hawaii’s population, such that about 29 percent of SNAP recipients in Hawaii are Native Hawaiian. Some 28 percent of the homeless population is Native Hawaiian. Poverty is also linked to forced, overcrowded, over-priced rented multi-generational living conditions. The very people the land program were to make historical amends with cannot afford mortgages or to build houses on their nearly-free land. Lots of government programs have had to be created to try and make up for all this but the end result is despite good and generous albeit discriminatory intentions a large number of Native Hawaiians have not been made right since 1893.
Now comes a new challenge to the idea of reparations. A lawsuit filed in Honolulu questions the system, claiming the 1921 Hawaiian Homes Commission Act is unconstitutional. It was filed this year on behalf of a white man who is not Native Hawaiian but is described in the lawsuit as a lifelong Hawaii resident. It’s the latest challenge to Native Hawaiian entitlements amid the Trump administration’s pushback against diversity, equity, and inclusion policies. “We are not just a race; we are beyond race,” one advocate said. “Like American Indians and Alaska Natives, we are political bodies with a trust relationship with the federal government.” “We do not seek to take anything from anyone,” countered one lawyer who helped file the suit. “All we seek to do is to make sure that this program is available to everyone on equal footing, regardless of their blood quantum. So whether you are 100 percent Native Hawaiian or zero percent, a successful lawsuit would result in everyone having the same chance of qualifying.”
The lawyer continued that he is confident the Supreme Court will ultimately agree government classifications based on ancestry or race are unconstitutional. The suit says “This explicitly ancestry-based requirement establishes a permanent government mandate for state officials to engage in outright racial discrimination, perpetuates stereotypes, and limits housing opportunities for most Hawaii residents.”
And with that we’re back to all the problems of modern reparations. Some 130 years after wrongdoing by the white plantation owners in Hawaii, the make-right things are going to people with no direct ties to past injustices, controlled by some discriminatory standard because one does have to draw a cut-off line somewhere. Likewise, current taxpayers and officials had no personal involvement in historical injustices such as slavery, segregation, or the overthrow of governments. Some argue reparations just end up deepening racial divisions by emphasizing historical grievances and assigning collective guilt based on at times dubious ancestry. They argue public policy should focus on building a shared future rather than trying to compensate for long past injustices. In the case of Hawaii, basically giving land to people who cannot really afford the costs of making a life out of it creates new problems. Modern discrimination just replaces past discrimination. How long should a government continue using racial classifications to remedy historical injustices when the intended beneficiaries still struggle and the promised benefits often remain out of reach?
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Supreme Court, Birthright Citizenship, and Espionage
The Supreme Court will soon decide Trump v. Barbara, in which the president seeks by Executive Order to overturn the citizenship clause of the 14th Amendment. The Amendment says almost any child born on U.S. soil is automatically and forever an American citizen. The Court will most likely reflect long precedent to allow birthright citizenship as it exists today to stand unaltered. But its decision will have profound secondary effects, not the least of which is determining the future of birthright citizenship tourism and its possible effect on national security.
The question of whether most children born in the U.S. are citizens connects back to the deadly omissions of the Founding Fathers when they failed to address slavery in creating the country. The founding documents did not even recognize blacks as full humans, never mind considering granting those born here citizenship. In the lead up to the Civil War, when the right to vote became crucial as new states entered the Union slave or free, the 1857 Supreme Court decision in Dred Scott v. Sandford held that those descended from African slaves could not be citizens of the United States. Some legal scholars drew implications from Scott to mean all children born in the United States to foreign parents were not automatically U.S. citizens.
The 14th Amendment to the Constitution was adopted in 1868, in the aftermath of the Civil War, as part of reconciling the status of millions of then-freed slaves. The Amendment’s citizenship clause specifically overruled Scott v. Sandford, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Controversy erupted even as the Amendment was being drafted. Senator Edgar Cowan of Pennsylvania argued states should not be forced to grant citizenship to the children of “Asiatic” immigrants or “Gypsies” who, he said, did not share American values or owe true allegiance to the country. Senator Jacob Howard of Michigan stated the Amendment was written to exclude the children of “foreigners” and “aliens.” Senator Lyman Trumbull of Illinois went on to successfully clarify that “subject to the jurisdiction” meant completely under the legal authority of U.S. courts. Because immigrants were required to obey U.S. laws, could be tried in U.S. courts, and paid U.S. taxes, their children born on U.S. soil were included. The only noteworthy groups deliberately excluded were children of foreign diplomats, who were not subject to U.S. law via their diplomatic immunity, and initially Native Americans living on sovereign tribal lands. They answered to tribal governments not the U.S. government. The 14th Amendment’s concept of citizenship was fully tested in the 1898 case United States v. Wong Kim Ark. The Supreme Court’s majority opinion confirmed birth on U.S. soil grants automatic citizenship, even if the parents are both foreigners or barred from ever becoming naturalized citizens themselves. Most mainstream constitutional scholars believe the legislative history as a whole, combined with Wong, supports citizenship for the children of aliens.
Birthright citizenship does leave a problem for America to deal with: will a foreign power, say China, use the idea to groom an American citizen who also owes allegiance to China into a spy, perhaps taking advantage of his American citizenship and highly-desired Mandarin language skills, to infiltrate him from the earliest stages into the CIA, State Department, NSA or military? Even short of actual spying, secondary allegiances can complicate decision-making in sensitive positions.
The issue is loyalty, not leverage (i.e., relatives for the Ministry of Truth to pressure in the home country, investments abroad to help or harm), which can be screened for. Intelligence officers of all nationalities have long-known that after money, ideology is the most powerful tool to convince someone to betray his government. Desire for importance, status, or appreciation from the “home” country closely follows. Things like blackmail do exist, just like in the movies, but are crude instruments that lead the target to resent the foreign government, not want to help it. The presence of a vast birth tourism industry, sending an estimated 60,000 Chinese to the U.S. a year to give birth to American citizens, sets the stage and raises the level of concern. Most of those Chinese births are economically-oriented, but the large number leaves room for bad actors. This all involves a lot of speculation, and it is well-known that foreign spies target Americans of all flavors, native born, or naturalized. But any mechanism that increases long-term Chinese access to the United States deserves scrutiny from a national security perspective.
Most debates over birthright citizenship focus on legal interpretation or immigration policy. The espionage question is one of national security. It asks whether a foreign government could exploit the doctrine for long-term intelligence purposes. While publicly known cases are impossible to locate, the job of intelligence professionals is to evaluate threats based not only on demonstrated harm but also on opportunity and intent. Birth tourism creates a mechanism by which foreign governments could establish long-term human footholds inside the United States. Whether that possibility is significant enough to justify changing a constitutional understanding that has existed for more than a century remains a central question. One hopes the Supreme Court gives this its due consideration in adjudicating Trump v. Barbara.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Chinese Baby Factories Exploit Birthright Citizenship
Even before taking office, Trump’s influence is being felt on birthright citizenship. ICE, taking advantage of Biden’s absence as a leader, saw a California man sentenced to over 3 years in prison for running a business called USA Happy Baby that helped pregnant Chinese women travel to the United States to deliver babies who would automatically get American citizenship.
USA Happy Baby helped several hundred women travel from China to give birth to American citizen babies. The “tourists” paid as much as $40,000 for services including apartment rentals during their stays in Southern California and worked with overseas entities that coached women on what to say during visa interviews and upon arriving in U.S. airports, advising them among other things to wear loose clothing to hide their pregnancies.
“For tens of thousands of dollars each, defendant helped his numerous customers deceive U.S. authorities and buy U.S. citizenship for their children,” federal prosecutors wrote in court papers. USA Happy Baby worked with a multi-million dollar adjacent business called You Win USA which further coached pregnant Chinese women on how to get into the United States. Another business, Star Baby Care, boasted of bringing over 8,000 Chinese women to the U.S. to give birth. The businesses operate openly, and advertise freely in Chinese-language media both here and abroad. It is big business. Yet many of the women, lacking U.S. health insurance, gave birth as public charges using public funds.
Such businesses have long operated in California, Florida, and other states and have catered to people not only from China, but also from Russia, Nigeria, Korea, and elsewhere. It isn’t illegal to visit the United States while pregnant, but lying to consular and immigration officials about the reason for travel is when the primary purpose is to give birth in the U.S. is. Birth travel is driven by birthright citizenship, and Donald Trump wants to do away with both of them.
“I see this as a grave national security concern and vulnerability,” said Mark Zito, assistant special agent-in-charge of Immigration and Customs Enforcement. “Are some of them doing it for security because the United States is more stable? Absolutely. But will those governments take advantage of this? Yes, they will.”
So what is birthright citizenship? A child born in the United States (with limited exceptions) to a foreign citizen, legally or illegally present in the U.S., is by virtue of the 14th Amendment (the so-called Citizenship Clause) automatically and forever an American citizen. The child need only prove he was born in the U.S. At the age of 21 the child can begin filing green card paperwork for his extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.
The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford, which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong is understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.
Doing away with birthright citizenship is another of Trump’s proclaimed Day One initiatives. In a campaign post, Trump wrote “On Day One, President Trump will sign an Executive Order to stop federal agencies from granting automatic U.S. citizenship to the children of illegal aliens. It will explain the clear meaning of the 14th Amendment, that U.S. Citizenship extends only to those both born in and ‘subject to the jurisdiction’ of the United States.”
The Trump campaign also said it would order on Day One the Social Security Administration to refuse Social Security numbers to newborn children without proof of the parents’ immigration status. Trump will issue the same order to the State Department, which issues U.S. passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly violate the 14th Amendment in Trump’s interpretation.
Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue. This means the Trump E.O. would likely be challenged immediately in lower courts and the case would be ripe for the Supreme Court to use to revisit Wong if they wished to. The Court could rule classes of foreigners on U.S. soil such as tourists (included already are children of foreign diplomats) are not subject to the jurisdiction of the United States and therefore their children, if born in this country, are not entitled to citizenship. The Court could also side with long precedent and refuse to even hear the case.
Another option for Trump would be to re-issue and this time enforce an Executive Order from Trump 1.0. Under this E.O., visitors can be denied temporary tourist visas if it’s found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not currently apply to the 39 countries in the Visa Waiver Program, including Korea, and State in implementing the E.O. forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order near-impossible to enforce. A revised E.O., which refines “tourism” to exclude planning to give birth in the U.S., extends the exclusion to the Visa Waiver Program, applies equally to ICE at the Ports of Entry, and prohibits the State Department from defanging the law in its implementing guidance, could go a long way toward at least slowing the flood of pregnant visitors to the U.S.
Trump could also order ICE to more aggressively pursue the baby facilitators now actively at work in the U.S., places like USA Happy Baby and You Win USA. ICE could productively look into how the organizations move money internationally, likely to find something akin to money laundering and tax evasion, even if the immigration laws themselves are too weak to hold up in court on a large scale.
What Trump cannot do is wipe away the 14th Amendment, and it is possible his other efforts to slow birth tourism will ultimately fail on this point. Then-House Speaker Paul Ryan in 2018 said “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Three SCOTUS Cases to Watch in the New Term
While the new Supreme Court term does not promise anything as life-changing as overturning Roe v. Wade, several cases offer potential change to First Amendment rights, resolution of questions over transrights, and a Second Amendment case which can affect a large number of ghost gun owners.
First Amendment
The question of the First Amendment and porn rights is represented by Free Speech Coalition, Inc. v. Paxton, in which the court will consider a Texas law requiring porn websites to verify a user’s age. That 2023 Texas law requires viewers pass some sort of test showing they are over 18, and also requires porn websites to display health warnings about the psychological risks of adult material (which the porn industry disputes) to include “addiction, impaired development, and increased demand for prostitution and child exploitation.” Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah, and Virginia all have similar age verification laws.
The key point of contention will be whether or not the process “unduly burdens” legitimate adult porn users in pursuit of their First Amendment rights, or whether the state has a “compelling interest” in protecting children such as to require the age verification test. The Free Speech Coalition, representing the adult industry, argues “Of central relevance here, it requires every user, including adults, to submit personally identifying information to access sensitive, intimate content over a medium—the Internet—that poses unique security and privacy concerns,”
At first glance it appears to have all the impact of say clicking through a simple age verification box, but in fact the decision could have sweeping implications for First Amendment protections, looking into the broader question of whether the speech rights of adults outweigh potential harms to minors.
First Amendment protections have often cut across the liberal/conservative divide, and the court has generally ruled in favor of protecting children, and so is likely to uphold the Texas age verification test. Oral arguments have yet to be scheduled.
14th Amendment
The court will also look at transrights. In U.S. v. Skrmetti, the Supreme Court will consider a Tennessee law banning gender transition treatments for minors. The law prohibits health care providers from giving hormones or puberty blockers to “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” Two transgender boys and one transgender girl are challenging the law, alongside the Biden-Harris Justice Department and a doctor, claiming it violates the 14th Amendment’s equal protection clause.
More than 20 states (affecting an estimated 100,000 trans adolescents and teenagers) passed laws halting minors’ access to puberty blockers, hormone therapy, or gender-affirming surgery, meaning the justices will in essence decide the constitutionality of gender-affirming care bans for minors using the Tennessee law as an example. The question of “equal protection” arises from the fact that the Tennessee law prohibits the hormones only for one purpose, gender transition, while allowing their use in other cases unrelated to transition. That suggests the law unconstitutionally discriminates on the basis of sex.
The Biden-Harris administration challenged Tennessee’s ban on gender-affirming care. “The laws are inflicting profound harms on transgender adolescents and their families by denying medical treatments that the affected adolescents, their parents, their doctors, and medical experts have all concluded are appropriate and necessary to treat a serious medical condition,” the Justice Department wrote in court filings.
Greg Germain, a law professor at Syracuse University, told Newsweek the case will be an interesting test for the Supreme Court. “Allowing the use of drugs for certain conditions and not others does not strike me as violating equal protection. But it’s the ultimate political hot potato these days,” he said. Oral arguments have yet to be scheduled.
Second Amendment
Garland v. VanDerStok, asks whether a kit for assembling a gun, or the sum of a set of parts capable of making a gun, is in fact a gun and thus subject to regulation, needing a serial number, its owner requiring a license and background check, etc. The court recently heard oral arguments in the case, a challenge to a regulation by the Biden-Harris Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that places new requirements on previously untraceable “ghost guns” assembled by the buyer.
The untraceable gun parts are typically purchased online; sales surged until an April 2022 ATF rule (part of the Biden-Harris administration’s crack down on ghost guns) amended the definition of a firearm to include self-assembly kits and collections of parts. It also stipulated partially assembled weapons that can easily be converted to full firearms must be registered as guns. Some of the “kits” are largely-assembled weapons, needing only a few holes drilled and lower receivers fitted to slides to function. A quick look online reveals a vibrant market for the goods. Some claim the full kits can be made into a functioning weapon by anyone who can handle an IKEA build; others say it is a very difficult job. If upheld by the court, all of these devices would need to be registered, doing away with ghost guns.
The justices seem inclined to OK Biden-Harris’ ghost gun rule via some creative examples.
“Is it the case that components that can easily be converted into something constitute that thing before they are converted as a matter of ordinary usage?” Justice Samuel Alito asked Solicitor General Elizabeth Prelogar, who argued in favor of preserving the ghost gun rule. “I’m going to show you: Here’s a blank pad, and here’s a pen,” Alito said. “Is this a grocery list?”
“There are a lot of things you could use those products for to create something other than a grocery list,” Prelogar replied, prompting Alito to try another example.
“If I show you, I put out on a counter some eggs, some chopped up ham, some chopped up pepper and onions, is that a western omelet?” Alito asked.
Prelogar again said no, because even that collection of ingredients could be used to make something else, while the parts kits at issue in the case “have no other conceivable use” beyond making a firearm.
Justice Amy Coney Barrett asked “Would your answer change if you ordered it from Hello Fresh, and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?” Barrett asked.
“We would recognize that for what it is,” Prelogar responded. “It doesn’t stretch plain English to say I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them.” Prelogar did say the Hello Fresh example was a better comparison, since the kit is intended to be made into chili and nothing else.
More than base skepticism, Barrett’s rebuttal to Alito, says Politico, was “notable because she was one of two conservative justices who joined with the three liberal justices last year to allow the ghost gun rule to take effect despite lower-court rulings that put it on hold on the grounds that it exceeded the authority Congress granted to federal officials in the Gun Control Act of 1968.”
Justice Roberts joined in trying to understand.
“Just what is the purpose of selling a receiver without the holes drilled in it?” the chief justice asked.
“Well, just like some individuals enjoy, like, working on their car every weekend, some individuals want to construct their own firearm,” the attorney for the ghost gun industry responded.
“Well, I mean, drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends,” the chief retorted.
Also weighing on the justices’ minds were the number of crimes committed with ghost guns, with the ATF reporting a 1000% increase between 2017 and 2021. And thus “by the end of arguments, you could practically hear the 6–3 majority [in favor of registering ghost guns] clicking into place,” wrote Slate.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump and the 14th Amendment
In the developing world the party in power does away with its opponents one of three ways: a bullet to the head, throwing them in jail or kicking them off the ballot. Good to see America, Leader of the Free World, is already at work on two of the three.
With it becoming ever-clearer that nothing in the courts is likely to stop Trump — polls show he can still win as a convicted felon from a jail cell — attention has turned to the third dirty solution, driving him off the ballot in as many states as possible to enable a Joe Biden walk-on win. The vehicle for this is supposedly the 14th Amendment, Section Three.
Section Three was ratified in 1868 following the Civil War as a way to keep former Confederate officials out of government. It reads in whole “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” (emphasis added)
The obvious ploy is to claim Trump engaged in some sort of insurrection on January 6 and with that making him ineligible to be president, his name should be automatically (self-enacting) removed from all ballots. Easier said than done; this use of the 14th Amendment is malarkey, will not succeed, and is simply another attempt at politically decapitating Donald Trump instead of beating him at the ballot box.
The problems with the 14th Amendment strategy begin with the question of whether the prohibition still exists. Written in 1868 to affect Confederate officials, the Article was overturned by Congress on behalf of several individuals. They could do the same for Trump. Then in 1872, the disabilities were removed, by a blanket act, from all persons
except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.
Twenty-six years later, Congress enacted law that saidthe disability imposed by Section Three… incurred heretofore, is hereby removed.
Further standing in the way of actually using 14/3 against Trump is the 1969 Supreme Court decision in Powell v McCormack, which held a state cannot require of a congressional candidate declarations of loyalty, or affidavits averring lack of intent to seek forcible overthrow of the government. The decision went on to clarify that it was unconstitutional to require any requirements for office other than those already stated in Article I (age, residency, citizenship.) Loyalty to the United States or to its government is not listed as one of the standing qualifications for membership in Congress.
Is Trump subject to Section Three? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office in 2017. Section Three of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an “Officer of the United States.”
Also left undefined is the standard of proof for “insurrection.” As a crime, insurrection has its legal definition. Trump, however, is not charged with insurrection (or sedition or rebellion) in any of the cases he now faces.
The 14th Amendment in its Section One also provides for due process, of which the adherents of 14/3 prescribe none, claiming the section is self-enacting and needs no enabling legislation or procedure.
Section Three remained largely dormant for many decades. January 6 (as well as a Pennsylvania Law Review article claiming Trump doesn’t qualify to serve as president under 14/3) have prompted renewed interest in the provision and its on and off again history. Active 14/3 challenges to specific candidates have been brought in Indiana, Wisconsin, North Carolina, Georgia, Arizona, and New Mexico, with contested offices ranging from County Commissioner to Senator (but not yet Trump.) Issues have emerged, including whether Section Three has been repealed; whether Congress has sole power to disqualify its members; whether voters have standing to challenge under Section Three; and questions of subject matter jurisdiction and federalism. Absent action by Congress (in process though not expected to succeed) the arguments over Section Three demand either that the whole thing be forgotten to history where it belongs, or the Supreme Court step in to sort out the significant legal issues, not the least of which is state versus federal power.
If you are keeping track of steps into the abyss, take a look at the core of what some current legal thinkers believe is 14/3: “Partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.” Seems instead like something for voters to decide, not out-of-context legalese from a previous century. This isn’t public policy, or even sound jurisprudence. This is a politicized legal fight. Sound democratic to you? Or maybe more like Democratic?
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Liz Cheney and Her 14th Amendment Comedy Show
The Democrats’ newest champion (Michael Avenatti did not return calls) Rep. Liz Cheney just about said the quiet part out loud: her January 6 Committee has the singular goal of pre-defeating Trump ahead of any voting in 2024. As it becomes clearer the Committee is failing in its propaganda campaign to get Republican Party powerbrokers to dump Trump, and as it is near crystalline the Committee will not find evidence leading to formal prosecution of Trump for sedition, treason, or insurrection, they are getting desperate. The latest? Purposefully misinterpreting an obscure phrase from a post-Civil War Constitutional amendment.
Cheney said “I think one of the really important things that our committee has to do is lay these facts out for the American people, so that they inform us in terms of our legislative activity going forward.” Cheney is talking about one phrase from the 14th Amendment, no doubt presented to her by an intern applying a Control + F search for “insurrection” to an online text of the Constitution. This is a familiar strategy for the Democrats, having purposefully taken phrases out of context from the 25th Amendment and the Emoluments Clause trying to force Trump from office for four years.
While the 14th Amendment was written primarily to grant citizenship and rights to freed slaves, it also created the “equal protection clause” which cornerstoned landmark cases including Brown v. Board of Education, Roe v. Wade, and Bush v. Gore. But tucked away in Section 3 was a bit of post-civil war housekeeping, the phrase “No person shall hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The 14th also provides for Congress to enforce the provisions via legislation, and Cheney thinks that’s the key to Democratic success. Seriously.
The intent in 1868 was to prevent Confederate leaders from returning to power. But the January 6 Committee is in 2022 so lacking in substantive content that they are considering some sort of legislation labeling Trump an insurrectionist, and thus prohibiting him from taking office again, even if he were to win the election. Cheney is not alone; Maryland Democratic Rep. Jamie Raskin has also called the use of the 14th a “live proposition.”
Section 3 does not have a particularly glorious history. Reconstruction Era prosecutors brought civil actions in court to oust officials linked to the confederacy, and Congress in some cases took action to refuse to seat Members. Section 3 was last used in 1919 against a socialist congressman accused of having given aid and comfort to Germany during WWI. The congressman was eventually seated after the Supreme Court threw out his espionage conviction. Currently the only criminal punishment left on the books dates to 1870 and makes it a misdemeanor to run for office when ineligible to do so under Section 3. So while the Constitution does specifically refer to legislative action by Congress as a way to enforce Section 3, precedent clearly shows due process and litigation would step in. Imagine Cheney or anyone trying to label someone who controls the loyalty of roughly 50 percent of Americans an insurrectionist through a show of hands.
Such legislation would also have to pass both houses and be signed by the president, something beyond a non-starter. The question of whether Section 3 is actually an unconstitutional Bill of Attainder is also not fully resolved. A Bill of Attainder in simple terms is a piece of law designed solely to punish one person, an argument the Democrats of 1868 themselves used to try and prevent Section 3 from even becoming part of the Constitution. The question was left largely unsettled as old Confederates died off and the use of Section 3 effectively ended in 1919 except in the fevered brains of people like Cheney.
There is also the open question of whether use of Section 3 against Trump would represent an unconstitutional ex post facto law. The drafters of Section 3 were clear their intent was precautionary, looking not to punish Confederates for the past but to prevent them from taking power again in the future. It was not a measure of punishment, but a measure of self-defense, and the bar was set very high: participating in actual warfare against the United States that took the lives of millions in pursuit of breaking up the Union. In Trump’s case, given that his offense would be being voted an insurrectionist over a year after making a speech to keep him from the White House, it would be very hard not to see it as punishment.
More problems? Section 3 prohibits someone from taking office, not from running for election. Imagine Trump conducting a three year campaign, winning the race, and then being prohibited from taking office over a clever interpretation of some words from 1868 clearly meant for a wholly different purpose.
The use of the 14th Amendment to end Trump is the kind of thing non-experts with too much Google time can convince themselves is true. Given that there is no realistic possibility of preventing Trump from taking office in 2024 under Section 3 of the 14th Amendment, what is this all about? Most superficially it is a chance for a trog like Liz Cheney to get on TV spouting some quasi-legalistic garbage. It will be diluted through CNN as “Trump’s election is barred by the Constitution” and “Trump is in violation of democracy” and repurposed into Lincoln Project Facebook memes.
But more substantively, silliness like Cheney’s is a sign of increasing desperation by the Democrats, three full years before the election. Increasingly sure they will lose at the ballot box, the Dems strategy is to prevent Trump from ever reaching the ballot box. Failing to be able to prosecute him, they have only left to persecute him, across tax courts in New York, the January 6 Committee, endless manhunts for Capitol trespassers, and the like. For a party that cries continuously that democracy is in danger, the Democrats act increasingly like thugs in a banana republic trying to bring down their opponents extra-electorally.
Political prosecutions are not new in America. Political pogroms are. It is sad to watch the Democratic Party embrace such third-world practices as policy.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Explainer: ‘Anchor Babies’ and the Law
Thanks to brave presidential candidates Trump and Bush, et al, the term “anchor baby” is now the subject of interest and ignorance by a media preoccupied with whatever shiny object is held in front of it.
Trump wants to tear up part of the Constitution he unilaterally proclaims is unconstitutional; no one is sure what the other Republicans plan to “do” about this issue, but they sure don’t support it somehow.
Anchor BabiesSo what are “anchor babies” and which parts of American law affect them?
An “anchor baby” (many find the term offensive, referring as it does to a child as an object) is a child born in the United States to a foreign citizen, legally or illegally present in the U.S., who, by virtue of the 14th Amendment to the Constitution, automatically and forever acquires American citizenship. The child need only prove s/he was born in the U.S.
The term anchor comes into play because at the age of 21 the child can begin filing green card paperwork for his/her extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.
Many conservatives feel conveying citizenship so freely cheapens the meaning of being an “American,” and especially object to the idea that a mother illegally in the United States can birth an American citizen. Others are troubled by a growing industry that sends foreign mothers to the U.S. specifically so that they can create such citizens, so-called “birth tourism.”
The Law
The concept that anyone born in the U.S. (one exception: those born not subject to U.S. law, which has been held to apply primarily to Native Americans and to children of certain accredited foreign diplomats exempt [immune] from U.S. laws, though there are loopholes even there) is automatically an American citizen is part of the 14th Amendment to the Constitution, the so-called Citizenship Clause.
The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves forcibly brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford), which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong has been understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.
It can get complicated, and there have been unsuccessful efforts to overturn or reinterpret Wong in light of contemporary concerns over immigration.
For those who like their law in Latin, the idea that anyone born in a certain country automatically acquires citizenship there is called jus soli (right of soil.) The opposite, that citizenship is derived only via one’s parents, is called jus sanguinis (right of blood.) No European nation offers unrestricted jus soli, and very few other countries outside the Western Hemisphere do either.
Foreigners, Visas and BabiesWhile some foreigners who give birth in the U.S. enter illegally by walking across a land border, a significant number of moms enter the U.S. on visas or the rough equivalent, the visa waiver program, which provides less fettered access to citizens from certain countries, mostly Europeans. Some give birth in the U.S.; is this legal?
It is. There is no law whatsoever that prohibits someone from coming to the United States specifically to give birth here and create an “anchor baby.”
Many uninformed commentators point to two visa laws that they feel may prohibit such an act, the “public charge” provision and the fraud provision.
Public charge is codified in Section 212(a)(4) of the Immigration and Naturalization Act. It says an individual who is likely at any time to become a public charge is inadmissible to the United States/can’t receive a visa. Some conservatives believe that moms coming to the U.S. to give birth, a country with the highest health care costs on the planet, should not be allowed in. They say many can’t, or won’t, pay, and are likely to have their maternity costs covered by American taxpayers.
The problems in applying this law to so-called anchor baby moms are two-fold.
First, the law is forward-looking; there needs to be information suggesting a mother plans to deliver at public cost. Proving the future is tricky business, even in regards to visas. In addition, the law states receiving public benefits does not automatically make an individual a public charge. In fact, many benefits are excluded from consideration, including Medicaid and other health insurance and health services, and specifically prenatal care. In short, a mom cannot be denied a visa or entry into the U.S. based upon public benefits she is legally eligible for. Immigration status — legal or illegal — generally is not considered when benefits are sought.
The second visa law that comes up in conservative discourse is 212(a)(6)(C), fraud. The idea is that a women seeking a visa or to enter the U.S. may try and hide her pregnancy, or her intent to give birth in the U.S. She might say she intends only a short romp through Disneyland before returning home. So that’s lying, fraud, right?
Well, it may be a lie, but it is not fraud as visas go. The fraud law requires a lie to be “material,” meaning if the truth were to be told, the visa would be denied. So, if someone says she is going to Disney but actually intends to rob a bank, that is a planned illegal act and the lie would be material. But since it is legal to give birth in the U.S., fibbing about it is not material.
Birth TourismThe current issue of Rolling Stone contains a long article on “birth tourism.” Such “tourism” is a huge business in Asia, particularly in China where rising incomes coincide with existing interest in emigration. Companies arrange for everything; a mom need only provide money. The companies legally assist the mother in obtaining a visa, arrange for her to stay in the U.S. in an apartment complex (dubbed “maternity hotels”), usually in California for convenience for flights from Asia, full of other Chinese moms, and then give birth in a local hospital staffed with Chinese-speaking doctors.
Such businesses have been around since at least the 1980s, and exist in most Asian countries. They are especially popular in China and Korea.
Some birth tourism companies also offer VIP packages that include sightseeing and limousine service, and special accommodations for dads who want to fly in for the actual birth. The businesses operate openly, and advertise freely in Chinese-language media both here and abroad. It is big business: In 2012, according to Chinese state media, there were some 10,000 tourist births from China; more recent estimates have put the number as high as 60,000 a year.
And since it is standard practice for the United States to grant a six month tourist stay for most visitors, the mother need not risk her or her baby’s health by traveling at the last minute. She can arrive around the end of the first trimester and stay on without incident. Once the baby is born, the birth tourism company helps mother obtain baby’s U.S. passport.
There is absolutely nothing illegal about birth tourism under U.S. law.
It is the active presence of such birth tourism out of China that lead candidate Bush to clarify that he was not speaking against Latinos, who are a huge voting block in America, but Asian anchor babies. “What I was talking about was the specific case of fraud being committed in organized efforts — and frankly, it’s more related to Asian people — coming into our country, having children in that organized effort, taking advantage of a noble concept, which is birthright citizenship.”
Bottom LineLeaving aside the generally jingoistic and often racist arguments conservatives put forward against anchor babies and birth tourism, there is nothing illegal going on.
Any desire to make such things illegal will require significant changes to the law, perhaps extending right up to re-amending the Constitution to reverse concepts that have been a part of America since the late 1800s. Despite all the rhetoric, in the end there is nothing really to see here.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Buy Peter’s Books on Amazon!
