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Trump with executive order

Trump's Delusional Orders On Birthright Citizenship Will Crash And Burn

The Supreme Court’s opinion in the birthright citizenship case, Trump v. Barbara, was decided by an unsettlingly close vote, but the actual decision of the Court was clear. The court majority delivered a stinging rebuke to the administration’s argument.

Six weeks later, Trump is running a version of his favorite play: take a loss and call it a win. On August 6, he issued two executive orders on birthright citizenship, and his contention is that neither one conflicts with the Barbara ruling. “There’s absolutely nothing in here that runs afoul of any of the Supreme Court’s opinions on the subject,” staff secretary Will Scharf said as the president put pen to paper. (Scharf’s know-nothing description takes on new significance with this morning’s announcement that he shortly will replace David Warrington as White House Counsel.)

It’s a fever dream. The chief order directly conflicts with Barbara, and it is destined to fail the first time the administration tries to use it. The second is subtler, and its fate will depend on how it’s administered.

Start with the delirium that drives Trump’s policy proposals. Trump’s obsession with the issue led him to attend (and then boorishly leave in the middle) the oral argument in Barbara. For years he has described birth tourism as a practice “where hundreds of thousands of people from all over the planet squat in hotels for their last few weeks of pregnancy to illegitimately and illegally obtain U.S. citizenship for the child.”

The Supreme Court at oral argument had asked the Solicitor General how many people are affected. The government’s chief advocate before the High Court couldn’t supply a number. At the signing of the orders, Trump simply snarled the figure into being: asked how many people actually benefit, when his own Solicitor General couldn’t give the Court a number, Trump answered, “hundreds of thousands, OK? Hundreds of thousands.”

The actual number of births to tourists, per a Penn State study, is under 0.3 percent of all U.S. births.

Trump’s new orders arrived with a constitutional theory. Per legal eminence Stephen Miller (errr maybe not: he doesn’t have a law degree), “As the president mentioned, the Fourteenth Amendment was passed exclusively in the aftermath of the Civil War, so to ensure that the children of slaves would be citizens,” Miller said. “It had no other meaning and purpose outside of that.” Trump repeated those terms: “This was for the babies of slaves.”

This is an astonishingly brazen argument, since the Supreme Court precisely, emphatically rejected it in the Barbara case. In fact, Justice Clarence Thomas, joined by Justice Neil Gorsuch, made the basic argument in dissent. Thomas wrote that the Citizenship Clause merely “constitutionalized the Civil Rights Act’s citizenship provision,” that its “main object” was to settle “the citizenship of freed [slaves],” and that “subject to the jurisdiction thereof” means complete or primary allegiance—allegiance owed solely to the United States—which in his view excludes the children of temporary visitors.

Miller and Trump are channeling Thomas’s dissenting argument as authority, six weeks after the Court rejected it decisively. (I laid out why Thomas’s reasoning was bankrupt in an earlier piece; the short version is that he asked what the drafters intended rather than the meaning of the provision they wrote.)

It’s stunning that the Trump administration would claim with a straight face that nothing in these orders “runs afoul of any of the Supreme Court’s opinions.”

What the Court actually held is close to the opposite view. Writing for the majority, Chief Justice Roberts explained that “subject to the jurisdiction thereof” means what it sounds like: you are subject to the laws of the United States. You can be taxed. You can be jailed. The phrase, Roberts wrote, refers to “the power of the United States to govern those within its territory” —and that power reaches everyone standing on American soil. A child born here and bound by our laws is a citizen at birth, period, full stop.

The exceptions are vanishingly narrow, and they prove the rule. The classic one is the child of a foreign diplomat. Why? Because a diplomat, by a legal fiction of extraterritoriality, is treated as if she never left home soil. She can rip up a parking ticket in front of the officer who wrote it, and there is nothing he can do, because she is not subject to his jurisdiction. That is what the exception is about: actual immunity from our laws, not disfavor.

Now hold the first executive order against that rule. The order decrees that a child born here is not a citizen if either parent falls into one of several new categories: an “alien enemy,” defined to sweep in members of foreign terrorist organizations; a foreign government employee; or someone who entered, or hired a surrogate who entered, in a “commercial transaction” to obtain citizenship for the child.

Ask of each the only question Barbara makes relevant. Is an accused terrorist subject to the laws of the United States? Of course they are—we arrest them, we try them, we can put them away for the rest of their life. Is a foreign national who came here to give birth subject to our laws? Obviously—they can be taxed, sued, deported, prosecuted for fraud, and given a speeding ticket. None of these people carries a diplomat’s immunity. Every one of them is fully within the jurisdiction of the United States, which is precisely why every one of their children born here is a citizen, full stop.

The order is silly and benighted, and it is going to crash and burn the first time the administration tries to enforce it against a real child from one of the new categories.

The second order, “Ending Birth Tourism,” is less clear-cut. It hands the president’s authority over who enters the country to the Secretaries of State and Homeland Security and tells them, in their discretion, to deny visas and turn away people who mean to come here to give birth.

In general, Trump stands on firmer ground here. That’s because the president has broad power over the border, and a regulation already lets a consular officer deny a visa to someone whose purpose is birth tourism. To that extent, the order adds almost nothing to the law, which is why even a Homeland Security official conceded it “simply restates existing law.”

But the order does convey broad discretion to the Cabinet Secretaries of State and DHS—to deny a visa, to revoke one and bar the holder for life, to move against anyone they decide is “facilitating” birth tourism—and they have all been hand-picked to serve Trump’s caprices, even over the Constitution. So the question becomes whether Trump’s loyal servants use their discretion to unmake the citizenship of a child already born here, to the delight of the big boss. At that point, it would run into the same constitutional brick wall as the first order.

We are left with two visions of the country.

In Donald Trump’s crabbed and fearful vision, hundreds of thousands of “birth tourists” huddle near the border, planning to filch something that was never theirs; and a president can strip them and their children of citizenship by decree.

In the vision of the 14th Amendment, as the Supreme Court has made clear, the citizenship clause lays down a promise, and it is one that has reverberated around the world: if you are born here and subject to our laws, you are a citizen and entitled to full participation in our society.

Go ahead, Trump: sign away.

The children born here today and tomorrow are citizens: his fever dream cannot touch them, and the Constitution’s promise outlasts him.

Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.

Reprinted with permission from Talking Feds.

Markwayne Mullin

Mullin Promoting Ex-Highway Patrol Officer (And Oklahoma Crony) To Run ICE

President Donald Trump's chief of staff was completely "blindsided" by a top administration nomination that the president announced out of the blue.

The Daily Beast reported Monday that Susie Wiles had no idea that Trump was nominating controversial Richard "Lance" Schroyer to take over U.S. Immigration and Customs Enforcement.

Schroyer, a former Oklahoma State Highway Patrol officer and close friend of Secretary Markwayne Mullin, is already facing backlash, Axios reported. Schroyer has no experience aside from "participating in a 287(g) agreement, a partnership that allows state and local officers to assist ICE with certain enforcement duties."

The Beast reported that Mullin was able to secure his pal as the pick because he personally visited Trump at the White House on a Saturday when Wiles was at the wedding of her daughter. Wiles only found out about Schroyer when it was announced on Truth Social by the president.

“I am very pleased to announce that I have nominated Lance Schroyer to be our next ICE Director,” Trump cheered. “Lance has over 29 YEARS of Law Enforcement experience in Oklahoma.”

A June report also indicated that deputy chief of staff Stephen Miller and immigration advisor Tom Homan were both “blindsided” by the announcement. They too didn't know anything about the meeting. At the time, it was reported that there was a "revolt" inside the Department of Homeland Security.

In a statement, White House spokeswoman Lauren Bis said that the president “has always been the decision maker on who he nominates for vacancies in the Administration.” She called it false that Trump's team was “blindsided by his decision.”

Meanwhile, across Capitol Hill, Schroyer is being mocked because he declared himself a “devoted father” and only a few days later it was discovered that he didn't pay child support for many years. His ex-wife ultimately dropped the case.

Behind the scenes, Schroyer has been working with Republican senators in an effort to secure the job. According to the Axios report, Sen. Rick Scott (R-FL.) said Schroyer “seemed like a smart guy.” Others said that they weren't concerned about his lack of experience. Mullin similarly had no experience with managing a massive operation like DHS, much less a budget of over $100 billion.

Sen. Bernie Moreno (R-OH) explained away Schroyer's inexperience by saying that he also personally had no experience when he was elected as senator.

“Look, what was my experience for being here in the Senate? I think you hire people because they have a great personality, because they’re smart, because they’re quick learners," claimed Moreno.

Trump demanded on Truth Social that the Senate confirm Schroyer immediately, but the formal paperwork didn't get to the Capitol until July 20. Lawmakers famously head back to their districts in August or use it as a vacation month.

A DHS spokesperson said the department was “firmly behind” Schroyer, and that Mullin “urged Lance’s swift confirmation in the U.S. Senate.”

Reprinted with permission from AlterNet

Danziger Draws

Danziger Draws

Jeff Danziger lives in New York City and Vermont. He is a long time cartoonist for The Rutland Herald and is represented by Counterpoint Syndicate. He is a recipient of the Herblock Prize and the Thomas Nast (Landau) Prize. He served in the US Army in Vietnam and was awarded the Bronze Star and the Air Medal. He has published eleven books of cartoons, a novel and a memoir. Visit him at jeffdanziger.com.

Why Birthright Citizenship Is Central To American Democracy -- And Our Future

Why Birthright Citizenship Is Central To American Democracy -- And Our Future

Now that we've completed our celebration of America's 250th birthday, it's time to prepare for the 300th — the tricentennial. I will not live to see it, but I hope the nation will.

At least, I hope a certain kind of America will celebrate its 300th year — one that has regained its moral equilibrium and turned its back resoundingly on illiberalism in all its ugly forms. If the United States does not reverse its current retreat from the principles and traditions that ennobled it, if it becomes the kind of predatory, grubby and aggressive nation that Donald Trump champions, or if it becomes the socialist shambles that a growing number on the left envision, then it will not deserve to celebrate a tricentennial.

How do we find our footing in the face of these challenges to liberalism? Well, the Supreme Court just helped us. Though the court has done its share to deform our constitutional structure recently, it also gave us a gift for the 250th anniversary of the Declaration. That gift was the birthright citizenship case, Trump v. Barbara.

Yes, it would have been more bracing if the court's decision had been 9-0. But on the key concepts, the majority affirmed a principle that is foundational to our republic: equality. And by affirming that citizenship belongs to (nearly) every child born on American soil, the court also tipped the scales on another argument currently roiling our republic, namely whether we are a creedal nation or one of blood and soil.

That's not how this works. Once the Supreme Court rules on the constitutionality of a matter, that's the final word. It takes it out of the hands of the elected legislatures. Remember all the hullabaloo about Roe v. Wade? You can look it up. The court could change its mind in future years (as it did in the Dobbs decision), or Congress and the states could amend the Constitution. But ordinary legislation? No.

By reaffirming birthright citizenship, the court upheld a pillar of equality in America. We are not guaranteed equality of outcomes, but we are all equal citizens. That is part of what the Revolutionary War achieved. It overturned centuries of deference, subordination and caste to create a new republic based on equality. While it's true that only land-owning white males were initially counted for voting, the ideas the revolution spawned made the extension of rights almost inevitable.

As the late historian Gordon Wood put it, "Equality was in fact the most radical and most powerful ideological force let loose in the Revolution. ... Once invoked, the idea of equality could not be stopped, and it tore through American society and culture with awesome power. It became what Herman Melville called 'the great God absolute! The centre and circumference of all democracy!'"

Before the revolution, students were instructed in how to bow to upperclassmen and professors, church pews were assigned "on the basis of family heads' age and social position," and land was inherited by primogeniture. Post-revolution, all of that changed. Handshaking, between men on equal footing, replaced bowing. Cap-doffing went out of fashion, and many other signifiers of rank and position were eliminated. The Constitution decreed that, "No Title of Nobility shall be granted by the United States," nor by any state.

Birthright citizenship is a constitutive part of this democratic philosophy.

Think about what the United States without birthright citizenship would look like. What is the bedrock upon which our citizenship would rest? Would it be race, religion, ethnic background, family history, wealth or some other criterion? JD Vance is already flirting with hierarchies of Americanness. He has referred often to the seven generations of his ancestors who are buried in Kentucky. "Now that's not just an idea, my friends," he insists, "that is a homeland."

Vance adds that he looks forward to resting there himself when his time comes, as will his children. But his children are the product of a marriage between himself and the daughter of recent immigrants. Her ancestors are buried in India. Is that their "homeland"? Are his children less American than he?

Abraham Lincoln would like a word. In a July 10, 1858 speech, he said:

"We have besides these men — descended by blood from our ancestors — among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe — German, Irish, French and Scandinavian — men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that 'We hold these truths to be self-evident, that all men are created equal,' and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are (my emphasis). That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

The Stephen Millers and Tucker Carlsons of the world are not Lincolnites. They emphatically endorse exclusive citizenship. Last year, Carlson hosted a Blaze Media figure who touted the superiority of "Heritage Americans," i.e., those who can trace their ancestry back to the Civil War. America, the guest claimed, is not "a collection of abstract things agreed to in some social contract" but a particular ethnocultural group that possesses the "Anglo-Protestant spirit" and "a tie to history and to the land. If you change the people, you change the culture." Carlson agreed.

If we were to confine citizenship to those who can trace their ancestry back to the Civil War, we would disenfranchise tens of millions, including the families of Antonin Scalia, Frank Sinatra, Jonas Salk, Barack Obama and, yes, Donald Trump, not to mention Sergey Brin, Elon Musk, Marco Rubio, Ted Cruz, Steve Jobs, Andrew Grove and so many others.

As Justice Horace Gray put it in the majority decision in Wong Kim Ark: "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."

Does this spirit require that we open our borders to all comers? Obviously not. Does it mean we must tolerate "birth tourism"? That point — raised in oral argument by the government's lawyer, D. John Sauer — is less than compelling. Sauer claimed that birthright citizenship "has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States." But when pressed by Roberts about how big a problem this is, Sauer admitted that "no one knows for sure." OK, then.

Do immigrants know that once they have a child in the United States, that child is a U.S. citizen? Of course. But has this given rise to a flood of pregnant women at ports of entry? No. The Niskanen Institute examined the Center for Immigration Studies' widely cited estimate of 33,000 births to tourists per year and found it completely wrong. The CIS, to its credit, issued a retraction. Niskanen estimates that the true number may be closer to zero. But even the inflated CIS estimates would yield less than 1% of births, and there are border controls and other methods short of changing the Constitution (or other proposals peddled by MAGA influencers) that can reduce that number.

There is nothing novel about xenophobia in America, but it has always been outweighed by our dedication to the idea of America as a "shining city on a hill." That gets expressed in both our openness to immigrants and our unstinting grant of citizenship to those born here. The xenophobes object that birthright citizenship is rare in the world, which is true, though it's not true that we are alone in this policy. Several Latin American countries also grant birthright citizenship.

But that rare openness to newcomers is one reason why America has been so much more successful in assimilating immigrants than other nations. As Ronald Reagan said in 1989: "We lead the world because, unique among nations, we draw our ... strength from every country and every corner of the world. And by doing so we continuously renew and enrich our nation."

From the very beginning, we were a multiethnic, multireligious society, bound by place, yes, but much more by commitment to liberty and democracy — to the words and ideals spelled out in the Declaration and the Constitution. Even in the earliest days of the republic, America was composed of the descendants of English, French, German, Scandinavian, African, Dutch, Scottish, Irish, Swedish, Finnish, Jewish, Swiss and Native Americans. At the time of the revolution, there were whole swaths of Pennsylvania in which only German was spoken. (Frankly, Benjamin Franklin was quite ungracious about it, though he later softened.)

Uniting disparate people into a cohesive whole is not natural. Look around the globe. Ethnic, racial and religious conflict is the way of the world. Our ability to transcend those differences is one of the triumphs of our republic. As we look ahead to that celebration 50 years from now, let us hope that Trump v. Barbara restores essential ballast to the hull of our storm-tossed ship of state.

Mona Charen is policy editor of The Bulwark and host of the "Beg to Differ" podcast. Her new book, Hard Right: The GOP's Drift Toward Extremism, is available now.

Reprinted with permission from Creators



Despite the claims of anti-immigrant fanatics, the legal basis of birthright citizenship has hardly been contested in American history. As Chief Justice John Roberts' majority opinion noted, the practice was embedded in common law and then codified in the 14th Amendment. Neither politicians nor legal scholars thought the amendment's phrase "subject to the jurisdiction thereof" was ambiguous. It excluded only the children of diplomats, children born to invading soldiers (thankfully not a big problem), and certain native tribes. The court affirmed that interpretation in its 1898 Wong Kim Ark decision.

Five of the six justices who voted to strike down Trump's executive order ending birthright citizenship last week did so on constitutional grounds. Yet we live in an age of optional realities, so the president, perhaps not understanding how the Constitution works, posted that Republicans could "easily" reverse the Supreme Court's decision "through Legislation. ... No long and unwieldy Constitutional Amendment is necessary!" Speaker Mike Johnson, who may understand how the Constitution works but is required by his Trump servitude to pretend otherwise, said that he was very disappointed in the ruling and that "we'll have to deal with it as Congress."

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