We’re less than a week away from midterm elections, a crucial moment for Republican candidates. Midterm elections have traditionally seen low voter participation, but this year is likely to be different.
Here are some of the problems Republicans face:
- Election machine glitches that changed voters’ choices to Republican candidates have been widely publicized, so many voters now know to check the results carefully before confirming their vote.
- Voter registration is high, with many groups ready to transport voters to the polls. Lyft, the San Francisco-based on-demand transportation company, has partnered with community groups to provide free transportation from underserved communities, and will give away 50% promo codes to their partners who encourage voter turnout. . High voter turnout has traditionally favored liberal candidates.
- Many corporations have committed to giving employees time off to vote. That’s mandated by some states, but there is no federal requirement (a list of those companies can be found online, though it is not inclusive ). Wage-earners with fewer options for taking time off will thus find it easier to vote, a fact which again typically favors liberal candidates.
- Republican attempts to limit voter registration or to purge already registered voters have not been as successful as their proponents no doubt wished. For example, North Dakota passed a law requiring every voter to show identification with a street address when they vote (North Dakota does not have voter registration). This was perceived as a way to interfere with Native American voting after they helped elect Democrat Heidi Heitkamp to the Senate (because many Native Americans have only post office boxes on their drivers’ licenses). But the law also provided for several other forms of identification besides drivers license or state ID card, and tribal leaders have worked hard to make those supplemental forms available to everyone.
What do you do when it becomes obvious that citizens truly want to exercise the American right to vote? How about removing American citizenship from a substantial number of people who probably are not going to vote for Republicans?
Is that even possible?
We won’t know for certain until the dust settles, but Lindsey Graham (R-South Carolina) said earlier this week that he plans to introduce legislation to do just that–repeal so-called ‘birthright citizenship’ that confers US citizenship on most persons born within the US and its territories:
“Finally, a president willing to take on this absurd policy of birthright citizenship.
“I’ve always supported comprehensive immigration reform – and at the same time – the elimination of birthright citizenship.
“The United States is one of two developed countries in the world who grant citizenship based on location of birth. This policy is a magnet for illegal immigration, out of the mainstream of the developed world, and needs to come to an end.
“In addition, I plan to introduce legislation along the same lines as the proposed executive order from President Trump.”
His claim that only two developed countries have such a policy is debatable, though it is at least less narrowly defined than Trump’s assertion that it’s true only of the United States. In fact, according to the CIA World Factbook, over three dozen countries recognize citizenship by birth only (jus soli – the right of the soil, or land) . Canada is certainly the other one of the two countries in Graham’s mind, but the list includes all the Americas. I suspect that at least two of them—Panama and Costa Rica—might object to being excluded from the “developed countries” category (there is no internationally accepted standard for inclusion).
Definitions aside, is it possible to end birthright citizenship by presidential proclamation, or even by legislation? Unilateral action by the president seems unlikely unless two things take place: first, Trump is convinced that the only way to guarantee overall Republican victory in November is to prevent a sizable group of people from voting; and second, his advisors can’t convince him that the attempt is a really bad idea. Congress will not return to session until November 13, so last-minute legislation is not possible. And even if Trump did make some proclamation, there is no way between now and the election to purge the rolls of suddenly disenfranchised voters. So this is not going to affect next week’s elections in terms of eligible voters. But the implied threat that illegal aliens are voting in our elections may result in more conservative voters going to the polls.
Whether Republicans will support Lindsey Graham’s proposal may depend on the outcome of the midterms. House Speaker Paul Ryan stated during a Kentucky radio station interview that “you cannot end birthright citizenship with an executive order.” As one might expect, that earned Trump’s ire in a Tweet suggesting that Ryan should mind his own business. But other Republicans share Ryan’s opinion that such a fundamental change would require a constitutional amendment. It seems possible that a strong Democrat showing in next week’s elections could change some of those minds.
Even if passed, such legislation would certainly be challenged before the Supreme Court. With the court’s current composition, that may be less problematic for the far right than at any time in the past. But it’s a long way from being a slam-dunk, and a defeat in the Supreme Court could muddy the waters for a potential amendment fight. My personal feeling is that Graham will either be talked out of introducing legislation or that it will not pass. But I’ve been wrong about a lot of things since 2016.
So what exactly is the argument about? There are two primary points of disagreement. The first relates to exactly who was meant to be included when birthright citizenship was first granted, and the second relates to the available remedies for changing the policy (constitutional amendment, legislative action, court ruling, presidential command, etc.).
Looking at the first point, the relevant portion of the 14th amendment reads: “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.”
The contention centers on the term “jurisdiction,” and whether it means only “subject to the laws thereof,” or “granting full allegiance to.”
The 1866 Civil Rights Act, from which the citizenship portion of the 14th Amendment is drawn, opens with the statement “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .” The 14th Amendment substituted “and subject to the jurisdiction thereof” for “not subject to any foreign power.”
There is a subtle difference between the two phrases: the former emphasizes the legal arena of the United States, while the latter refers to the absence of that same legal power from any other government. This is not a trivial distinction, because while it would be almost impossible for a person to be subject to no civil power, it is not at all unusual for someone to be subject to more than one civil power. Any traveler in a foreign country is subject not only to the laws of his or her native land, but while in the foreign country, subject also to its laws, with a very few exceptions. The two phrases are thus not identical in meaning, and “subject to the jurisdiction of the United States” does not exclude simultaneously being subject to a foreign power.
So the 1866 Act’s emphasis is that persons born in the United States and specifically not subject to any foreign power were to be citizens of the United States. That is a less exclusionary clause than the wording of the 14th amendment, because it eliminates only those US-born persons who are subject to a foreign power.
The 14th Amendment’s emphasis is that persons born in the United States and also subject to its jurisdiction were to be citizens of the United States, a more exclusionary phrasing, because it requires the satisfaction of two criteria: born in the United States and subject to its jurisdiction.
It’s worth asking why that change was made. Simply put, it was to prevent automatic citizenship from being granted to Native Americans.
Senator Lyman Trumbull, one of the authors of both the 1866 act and the 14th Amendment, stated that “subject to the jurisdiction of the United States” meant subject to its “complete” jurisdiction, which means “[n]ot owing allegiance to anybody else.” Indians had lawful tribal allegiances, which meant that they and their children owed allegiance to other powers than the United States regardless of whether they were born on tribal lands or elsewhere in the United States. That conveniently ignored the fact that the tribal lands were (and are) completely within the boundaries of the United States and that Indians were subject to the same laws as everyone else. The point of the argument was not to clarify the meaning of “jurisdiction” for all future generations, but to ensure that its contemporary interpretation prevented Indians from being granted US citizenship.
The issue of Indian citizenship was eventually dealt with in 1924 in the legislation sometimes known as the Snyder Act . But the change of language from 1866 Civil Rights Act to 14th Amendment left the door open for other interpretations of “jurisdiction,” even though the authors of the Act made it clear that the language was intended specifically to prevent Indian citizenship.
So to extend the meaning of “jurisdiction” now to mean no ties of any kind to any foreign power implies an intention that was not part of the original definition. That has been made clear by the clarifications added by Congress in the intervening years. For example, children born in the US to foreign-citizen parents in diplomatic service, or foreign citizens here for temporary business activities are not granted automatic US citizenship, whereas children born to legal immigrants are granted citizenship. That clarification would not have been necessary if “jurisdiction” actually meant owing no allegiance to anyone else whatsoever. Foreign citizens certainly are subject to the jurisdiction of the United States while they are in residence here (except, as mentioned before, for a few limited exceptions). But they are also still subject to the laws and regulations of their own countries.
The second issue is whether jus soli can be overturned by presidential proclamation or congressional action, or will require a constitutional amendment. The fundamental point, to me at least, is the level at which it was first established. I agree with those who argue that it was not part of the original constitution (which does not address citizenship at all, except in the sense that residents of the United States were no longer subject to the king of England). But it was part of both congressional legislation (the 1866 Civil Rights Act) and constitutional law (the 14th Amendment to the Constitution). My admittedly untutored opinion is that once something becomes part of the United States Constitution, it can not (and should not) be undone by anything less than action at that same level of authority. If that were not the case, just to use one example, it would not have been necessary to repeal the 18th Amendment in order to overturn prohibition. Congress could simply have passed a law saying “We don’t think that’s a good idea any more, so we’re no longer going to criminalize the sale and consumption of alcoholic beverages.” But it did not, and we went through the laborious but legally correct process of approving one amendment in order to repeal a previous one. Obviously we do not want to repeal the 14th Amendment, but it is certainly possible to craft a new amendment which would repeal the jus soli portion of the 14th, and also replace the earlier language of the 1866 Civil Rights Act with something relevant to today’s needs. There have been calls to do exactly that, in connection with overall immigration reform. But immigration reform requires that increasingly elusive feature of governance called bipartisan cooperation and seems unlikely to take place in the foreseeable future.
I do not want to imply that I think birthright citizenship is a strictly partisan issue. Many people have written about it objectively and with no obvious political motivation. One such article (and the book it refers to) comes from Peter H. Schuck and Rogers M. Smith, authors of Citizenship Without Consent: Illegal Aliens in the American Polity, published in 1985 by Yale University Press . I found their reasoning persuasive and their conclusions worthy of consideration (in addition to having a very readable writing style). I happily refer anyone interested in an objective study of the subject to their article in the Fall 2018 issue of National Affairs . My interest in the subject is not so much from a strictly Constitutional point of view as from a study of motives and purposes—connecting the dots, in other words, between the emotional buzzwords and the true intentions.
And I still disagree with them about the original intentions of the 1866 Civil Rights Act and the subsequent 14th Amendment. One thing that the US had in common with all the other countries of the Americas was a strong immigrant presence, mostly from Europe, but also from the Pacific nations. Jus soli made these newly discovered countries more attractive to immigrants by granting automatic citizenship to their children. To me, that says that the original purpose was indeed to make citizenship as easily available as possible. Circumstances change, however, and immigration is no longer universally desirable. For example, Canada’s last great wave of immigration (the 1908 Barr Colony) was billed as a move to “Keep Canada for the English!” by attracting British families to offset the increasing numbers of Russian, Japanese and Chinese immigrants. The US has grown increasingly paranoid that aliens will somehow take over its culture, language and mores. If birthright citizenship is no longer important to a country’s goals, there may be good reason to abolish it (as several European and Asian countries have done quite recently).
However, whether it is repealed by a new amendment, abolished by Congress, tested (again) in the courts or attempted to be abolished by Presidential fiat, the immediate goal is to purge from the roll of voters as many persons as possible who might vote against Republican candidates and issues.
That is not a considered change in a country’s direction, but an unethical attempt to manipulate election outcomes.
1. The Ride to Vote
2. Make Election Day a Company Holiday
3. CIA World Factbook, Citizenship
4. Indian Citizenship Act
5. The Question of Birthright Citizenship