Originally Published in The Intercept
Robert Mackey - August 18, 2020
In 2018, the president called birthright citizenship “ridiculous” and vowed to stop it by executive order.
IT IS NOT hard to prove that Donald Trump was lying when he said twice in the past week that he hasn’t given much thought to the crackpot legal theory that Sen. Kamala Harris was not entitled to citizenship when she was born in Oakland, California in 1964 to immigrant parents — and so, is not eligible now to be Vice President.
That’s because the president stated clearly in a televised interview with Jonathan Swan of Axios just before the 2018 midterms that he planned to issue an executive order based on that fringe reading of the Constitution, which would instruct federal agencies that children born in the United States to non-citizens were not entitled to U.S. citizenship at birth.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told Swan in an interview excerpt published online on Oct. 30, 2018. “You can definitely do it with an act of Congress,” Trump added, incorrectly, “but now they’re saying I can do it just with an executive order.”
While Trump, characteristically, did not identify the “they” saying that he could undo the definition of birthright citizenship in the 14th Amendment to the Constitution, the president has repeatedly praised one of the only lawyers in America who claims that the plain language of that amendment has been misunderstood for over 150 years.
As Swan reported at the time, John Eastman, a fellow at the far-right Claremont Institute think tank, argued, as he has for decades, that the amendment granting citizenship to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” should be read to exclude the children of people who are not U.S. citizens when their child is born.
It was Eastman who claimed last week — in a discredited Newsweek op-ed that the publication has now, sort of, apologized for publishing — that Harris had no claim to citizenship at birth, since her parents were still, at the time, subject not just to the jurisdiction of the United States but also to their native lands of India and Jamaica.
Swan also noted that Trump’s claim that an executive order would suffice to change the constitutional definition of citizenship — an idea rejected by an overwhelming consensus of conservative and liberal law scholars — came just three months after the president was urged to issue such an order, and dare the courts to block it, in a Washington Post op-ed by Michael Anton, a former national security official in the Trump administration who is also a Claremont Institute fellow.
In the 2018 interview, Trump called birthright citizenship “ridiculous,” and falsely asserted that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen.” In fact, at least 30 nations grant citizenship this way. He also said that an executive order was in the process of being drafted. Whether or not that was true, the fact that Trump has at least discussed the possibility of stripping citizenship from people like Harris might help explain why he refused twice last week to confirm that she is obviously eligible for an elected office open only to “a natural born Citizen.”
Instead, Trump called the question Eastman raised about Harris’s citizenship at birth “very serious” and a potential “problem” for her. He also praised the fringe legal theorist as “a very highly qualified, very talented lawyer” on Thursday and called him “a brilliant lawyer” twice on Saturday.
Swan did not immediately reply to a request to say whether he interviewed Eastman for his 2018 report at the suggestion of someone in the Trump administration, but the president has made no secret of his admiration for far-right scholar or his think tank.
Last year, Trump thanked Eastman and praised him as a “Brilliant Constitutional Lawyer” in two tweets urging his followers to watch a Fox News interview in which the Claremont scholar claimed that “the essential criteria for the appointment of” Special Counsel Robert Mueller to look into the Russian effort to help elect Trump in 2016 “did not exist.”
A few months later, on November 21, 2019, Trump heaped praise on the think tankthat pays Eastman and Anton when he awarded the National Humanities Medal to the Claremont Institute, “for championing the Nation’s founding principles” and fighting “to recover the American idea.”
Although Trump’s claim that he has the power to deny citizenship to the children of non-naturalized immigrants like Harris thrills racists inside the White House and online, the idea has been summarily rejected by a broad consensus of liberal and conservative legal experts.
“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear,” Omar Jadwat, the director of the ACLU’s Immigrants’ Rights Project, said in 2018 when Trump’s Axios interview was broadcast. “This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”
Laurence Tribe, a professor of constitutional law at Harvard Law School, told The New York Times last week that Eastman’s “idiotic theory” was “total B.S.” and about as well grounded as the “flat earth theory.”
Conservative experts have been equally dismissive. Judge James C. Ho, who was appointed to the federal circuit court by Trump, comprehensively debunked Eastman’s interpretation in a 2015 debate at the conservative Heritage Foundation, and dissected it further in an essay the same year for The Federalist, an ultraconservative publication.
“The original understanding of the Citizenship Clause is further reinforced by judicial precedent. In United States v. Wong Kim Ark (1898), the U.S. Supreme Court confirmed that a child born in the U.S., but to alien parents, is nevertheless entitled to birthright citizenship,” Ho wrote in his Federalist essay. “Wong Kim Ark was born in San Francisco to alien Chinese parents who ‘were never employed in any diplomatic or official capacity under the emperor of China.’ After traveling to China on a temporary visit, he was denied permission to return to the U.S.; the government argued that he was not a citizen, notwithstanding his U.S. birth, through an aggressive reading of the Chinese Exclusion Acts.”
The court rejected the government’s argument by a 6-2 vote. “The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,” the majority wrote. “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”
As Ho also noted, no less a conservative legal icon than Justice Antonin Scalia dismissed Eastman’s theory when it was submitted to the Supreme Court in 2004, in a friend of the court brief on behalf of the Claremont Institute in the case of Hamdi v. Rumsfeld. In that case, the opinion of the Supreme Court majority was that Yaser Hamdi, an alleged Taliban fighter held as an enemy combatant, was entitled to due process because he was an American citizen by reason of his birth in Louisiana to parents who were in the U.S. on temporary work visas. Scalia joined Justice John Paul Stevens in a dissent arguing that Hamdi, “a presumed citizen,” should be released.
Linda Chavez, a conservative who served in the Reagan administration as staff director of the U.S. Commission on Civil Rights, also took Eastman to task for his theory in 2016, and drew attention to the racist history of efforts to restrict birthright citizenship. “From the Founding, American practice incorporated the English Common Law of jus solis, which granted citizenship based on the child’s birthplace, not that of his parents or ancestors, as was the practice throughout much of Europe,” Chavez wrotein a critique of Eastman’s call to “reform” birthright citizenship. “The infamous Dred Scott decision ignored this precedent by declaring that no person descended from African ancestry, even if emancipated, free-born or living in a state that did not permit slavery, was entitled to U.S. citizenship under the Constitution, which was the precipitating factor in drafting the 14th Amendment,” Chavez observed.
“The framers of the 14th Amendment were radical Republicans who wanted to restore the guarantee of birthright citizenship that had been upended by Dred Scott, not place new restrictions on citizenship based on blood or ancestry,” Chavez argued.
Trump’s claim in his 2018 Axios interview that birthright citizenship could be halted though legislation is also legally dubious.
In 1995, Walter Dellinger, the Assistant Attorney General and head of the Office of Legal Counsel, testified to Congress that a bill proposed that year, which would have denied citizenship to children “born in the United States to certain classes of alien parents,” would be struck down if enacted. Because “the rule of citizenship acquired by birth within the United States is the law of the Constitution,” Dellinger explained, “it cannot be changed through legislation, but only by amending the Constitution.”
“My office grapples with many difficult and close issues of constitutional law,” he added. “The lawfulness of this bill is not among them. This legislation is unquestionably unconstitutional.”
Republicans, however, have not given up on the idea of such legislation. As a presidential candidate in 2015, Sen. Lindsey Graham told CNN that even though Trump’s plan to deport undocumented immigrants was “absolute gibberish,” he favored either amending the Constitution or introducing legislation to end birthright citizenship.
Three years later, after Graham’s abrupt embrace of Trump, he praised him for being “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,” Graham tweeted in response to Trump’s 2018 Axios interview. “I plan to introduce legislation along the same lines as the proposed executive order.”
Still, unlike Trump, Graham seems to accept that birthright citizenship is the law of the land now, and has been for more than a century. As the president was casting doubt on Harris’s eligibility for office, Graham tweeted: “there is no issue as to whether or not she is an American citizen. She was born in the United States in 1964 to parents who were legally present. Under the Constitution and Supreme Court precedent, she is unequivocally an American citizen.”