Revenge of the Pen and the Phone
2018-12-15 · Guest: Sheldon Gilbert (National Constitution Center) · 51:50
History and legal foundations of birthright citizenship
Bob Zadek and Sheldon Gilbert of the National Constitution Center explore the history and legal foundations of birthright citizenship in the United States. They trace the concept from the original Constitution through the Dred Scott v. Sandford decision and the 14th Amendment to modern debates over executive orders and the “subject to the jurisdiction” clause.
Topics: Birthright Citizenship, 14th Amendment, Immigration Law, Dred Scott v. Sandford, United States v. Wong Kim Ark, Executive Orders, National Constitution Center, Enumerated Powers
Speakers:
- Bob Zadek: Host
- Sheldon Gilbert: Vice President for Content and Development at the National Constitution Center
- Caller (Even): Listener
Section 1: Introduction to Immigration and Sheldon Gilbert [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Thanks so much for listening this fall Sunday morning. We are today and always the show of ideas, never once the show of attitude. Thanks so much for listening.
Yesterday was Bill of Rights Day, an important day in the history of our country. More about that in a moment. The discussion that is in the news all the time is the discussion of immigration. The discussion of immigration goes on on so many levels. There is, starting from, if you will, the top, there is the legal issues involved in immigration and so-called illegal immigration. The illegality, that is, immigration is discussed on the principle of the law, what is illegal, what should be permitted, and immigration and immigrants and their relationship to the law.
It is, of course, most importantly, a constitutional issue. Does Congress, in fact, have the power to limit immigration into this country? And also, it discusses, or immigration discussion is on a policy basis. What should, putting aside for a moment the law, putting aside for a moment the Constitution, what is sensible and moral policy of our country regarding immigration? And there is, of course, at the bottom, at the very bottom, the ugly racial, xenophobic, emotional battle that’s going on about immigration and what is happening to American culture, whatever that even may mean.
This morning, we are going to try to bring some sense to this discussion, or at least help our friends out there when they organize their own feelings and engage in discussions on the subject of immigration. At least it is important to know what the law in general is, and far more importantly, what does the Constitution teach us about immigration and what aspects of immigration can be regulated by the government. We will discuss both the Constitution and the moral issues this morning.
And who better to help us sort out the somewhat complex, but perhaps straightforward constitutional implications of immigration than Sheldon Gilbert, this morning’s guest. Sheldon is the Vice President for Content and Development and he’s a senior fellow for constitutional studies with a very important organization, and I’ll ask Sheldon to explain it in a moment, the National Constitution Center in Philadelphia, Pennsylvania. Sheldon has represented clients in perhaps a hundred cases at the United States Supreme Court. Prior to serving at the National Constitution Center, Sheldon was the director of IJ’s, the Institute for Justice, Center for Judicial Engagement. Institute for Justice is, as my listeners know, an organization that I cannot support enough. I cannot read the work that IJ does without getting emotional, even sometimes misty-eyed. The Institute for Justice and the National Constitution Center are two of the most important organizations in our country, and Sheldon has had deep associations with both. Sheldon, welcome to the show this morning.
Sheldon Gilbert: Glad to be here. Thank you so much for the generous introduction.
Section 2: The National Constitution Center and the Interactive Constitution [04:31]
Bob Zadek: Well deserved, Sheldon, to be sure. Sheldon, before we start discussing immigration, just a word, if you will, about the National Constitution Center in general and Bill of Rights Day, which was yesterday.
Sheldon Gilbert: Oh, absolutely. You know, the National Constitution Center has its origin story during the Reagan administration when Congress issued a resolution calling for an organization with a singular purpose to educate the American public about the meaning and importance of the Constitution. And that’s who we are and what we do. We’re located on Independence Mall, right across from Independence Hall where the Constitution was signed, where the Declaration of Independence was signed. It’s a historic location. And from that location, not only do we have a beautiful educational center there, we have a national platform for teaching the entire world about the Constitution.
Bob Zadek: Sheldon, tell us, I know we have a lot to do on immigration, but I have to ask you, tell us about the Interactive Constitution that you and your colleagues and Jeff Rosen, the director or the president of the National Constitution Center, has put together. Just tell us a word about the Interactive Constitution, just so our friends out there will know what a valuable resource that is.
Sheldon Gilbert: Oh, this is, thank you for asking. You know, the Interactive Constitution, if you go to constitutioncenter.org or if you download it on a mobile app, take any provision in the Constitution—we’re going to talk about one of them today—you can look up the constitutional text, read the text, and then we’ve assembled the top scholars on the right and the left to talk about that constitutional provision. And one of the things I love about this is that they each start with areas of agreement where scholars on the right and left say, “Look, we might disagree about different things about this particular part of the Constitution, but here’s what we agree about.” And then from there, you have matters of debate. Here are the perspectives of conservative scholars, here are the perspectives of liberal scholars on the same part of the Constitution. So it’s really a place where you can go and you can hear both sides of the argument about the Constitution and where you can see scholars disagreeing without being disagreeable. It’s terrific.
Bob Zadek: And what is most important in what Sheldon said is you can hear both sides of an issue. I defy, I defy our listeners and friends out there to find another resource where you can get a balanced explanation of both sides of any issue. For sure not on major mainstream and not-so-mainstream media. I don’t know of any other source where you can get both sides of an issue, so it will help you organize your thinking. So you don’t just get an echo chamber where your own views are reinforced, you get to read a clear, concise, well-reasoned explanation of the other view, which will help you either reinforce your view or perhaps change your view. Okay, the great work at the National Constitution Center, it is a must on your list if you visit Philadelphia and a must if you’re doing online research. It is a wonderful resource.
Section 3: Defining Birthright Citizenship [05:40]
Bob Zadek: Okay, let’s roll up our sleeves and get into this morning’s hot-button topic of immigration in general and specifically, because immigration is far too complex to discuss in one show, but we are going to discuss an important subtopic in immigration, which is known in the media and in the public debate as birthright citizenship. Birthright citizenship describes a concept which states that if illegal immigrants—it doesn’t say this, but the effect of it is—if there are illegal immigrants in this country illegally, and they have a baby, and the baby is born physically within the jurisdiction of the United States, the baby is born here, that baby is for that fact and that fact alone, because he or she is born here, that baby is an American citizen even though his or her parents were here illegally and may be the subject of deportation. So Sheldon, is that a fairly accurate starting point of the subject of birthright citizenship?
Sheldon Gilbert: Yeah, I think that’s a good place to start. Birthright citizenship is a different idea of how you become a citizen, and the idea is basically that anybody who’s born on US soil, it doesn’t matter if your parents are American citizens or are legal permanent residents or are not here legally, the basic concept of birthright citizenship is if you’re born on US soil, you are an American citizen.
Bob Zadek: And that is the topic of this morning’s show. And what I’ll do is Donald Trump, when he was campaigning, he was a candidate in the primaries, Donald Trump gave a quote which summarizes the issue and it also summarizes at least his position when he was a candidate and I think his position now as president. Trump said in summarizing it, quote, “A woman gets pregnant. She’s nine months. She walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don’t think so,” close quote. That’s what Trump said in 2015 when he was starting to be a candidate and discussing the issue. So that is birthright citizenship.
Section 4: Citizenship in the Original Constitution [06:40]
Bob Zadek: Now, obviously birthright citizenship, the concept, didn’t just spring up in 2015 or 2014. It has a rich and important constitutional and legal history. So Sheldon, where does the story of birthright citizenship start?
Sheldon Gilbert: Well, it starts at the very beginning of the country as soon as we adopt the Constitution. Now, the original Constitution that is drafted in 1787 mentions citizenship, but it’s a little bit vague. It doesn’t explicitly say how somebody becomes a citizen, it doesn’t explicitly say kind of what the benefits of citizenship are, but there are all these hints in the original Constitution that there’s this category of citizenship called national citizenship, right? So for example, Article 3 says that the judiciary, the judicial branch, the federal courts can have jurisdiction over controversies between citizens of different states. So there’s an idea of state citizenship. But Article 2, that’s the part of the Constitution that deals with the president, says that only a natural-born citizen of the United States can become president, right? So there are hints that there’s this category of national citizenship and there are hints that one way to become a citizen is through being born a citizen from in Article 2, but it’s still pretty vague and pretty murky and it leaves a lot of open room for debate and interpretation, and it becomes a serious source of debate about how one becomes an American citizen immediately after the Constitution is adopted.
Section 5: Dred Scott and the Denial of Citizenship [08:20]
Bob Zadek: And I guess perhaps there was so little mention of it—this is of course speculation, informed speculation I think—that there wasn’t a lot of attention given to citizenship because there wasn’t a lot of profound benefit. You weren’t, if you were a citizen in the United States in 1789 or 1790, you weren’t all that special. You didn’t have this massive accumulation of rights and benefits which non-citizens didn’t have. And in fact, of course, in the founding era, we were very inviting, we knew we needed immigration, so not much thought was given to it because it wasn’t all that, as a legal matter, all that important in the early growth of our country. Of course, the concept of citizenship… I’m sorry, go ahead Sheldon.
Sheldon Gilbert: No, I was just going to push back on that a little bit. For most people living in the early American Republic, you’re absolutely right. But there is one category of individuals for whom citizenship and national citizenship was really important and had a real-world effect on a day-to-day basis, and that is African Americans, whether slaves in the South or free African Americans in the North.
Bob Zadek: I was about to get there. That was my next sentence. I was about to say citizenship wasn’t important except when you get to the subject of slavery. So the subject of slavery, which we are not directly talking about this morning, but it is essential in tracing the history of birthright citizenship to know that there was a huge number of people where citizenship and having the rights and benefits of being a citizen mattered a whole lot, and that was of course slavery. So of course, the subject of birthright citizenship is intertwined with the history of slavery in our country. So let’s start with perhaps the Dred Scott v. Sandford case as we work our way towards birthright citizenship. I think that’s a… we can start almost anywhere, but let’s start with Dred Scott. What happened to Dred Scott and its relationship to the 14th Amendment and in fact the passage of the 14th Amendment?
Sheldon Gilbert: You bet. So Dred and Harriet Scott were slaves who were at risk of being torn apart as a family after the death of Dred Scott’s master or owner. And Dred Scott did something that many slaves had done over the years and he filed what’s referred to as a freedom suit. And a freedom suit is basically a particular type of lawsuit during this period where a slave could go into court, and that could be a state court in the South in a slave state, and say, “Hey, there is a legal basis for me to no longer be a slave.” And there are lots of different theories for how a slave could go into court and in one of these freedom suits say, “I’m not really a slave.” They might say, “Look, I can show you that I have a Native American ancestry,” or they might say that my master freed me when he died in his will and so I should be free.
But the most common category, and what Dred Scott argued, is that my master or somebody else took me out of a slave state and into a free state, right? They took me onto free soil. And they invoke this legal theory called “once free, always free.” So once a slave steps foot on free soil, then even if they’re brought back into slave territory, they’re free. And so Dred Scott went into court and he said, “Hey, I was taken into free territory and so I should be free.” And he made that argument in Missouri state court. The Missouri state court basically ruled against him and said, “No, we’re not going to accept this theory anymore.” And so he tries again and he tries to go to federal court. And he goes to federal court and says, “Hey, I want to bring this argument, this freedom suit in federal court.”
But remember that thing I said about citizenship and Article 3, the part of the Constitution that talks about the jurisdiction of the courts? Well, one of the ways you get into a federal court is if you have a lawsuit by citizens of different states, right? So Dred Scott is saying, “I’m a citizen of one state, I’m suing somebody who claims that they own me who’s in another state, so we’re citizens of different states and that’s how I get into federal court.” His case makes it all the way up to the US Supreme Court, and the US Supreme Court in one of the most controversial decisions in all of American history says two things. First of all, the court says, “You know what, Dred Scott, you can’t even be in this court. You can’t be in a federal court at all. And why can’t you be in a federal court at all? Because you are not a citizen. You’re not a citizen of anywhere.” And the reason you’re not a citizen is because we interpret the Constitution to say that anyone of African descent, anyone who is black, cannot be a citizen. Doesn’t matter if you’re free, doesn’t matter if you’re a slave, if you are of African descent, you have no rights—this is from the language of the opinion—you have no rights that the white man must respect. And so you can’t even be in this court. And then the court went even further and said, “And by the way, all these statutes that Congress has adopted that say that slavery can’t extend to this part of the country or slavery won’t exist in this territory or that territory, unconstitutional. Congress doesn’t have the power to stop slavery.” So those two decisions had profound consequences, but it’s the first one that we’re talking about today, this idea that by virtue of the color of your skin, you could never be a citizen of the United States.
Section 6: The 14th Amendment and Section 1 [12:10]
Bob Zadek: And that decision was written by Chief Justice Taney. It is, most people will acknowledge, it probably is the worst Supreme Court decision in the history of the Supreme Court. If you read it, it’ll just… the hatred of blacks just oozes from every sentence of Justice Taney. He was from Maryland, he was an avowed pro-slavery justice. He was a pretty awful person and of course an equally awful Chief Justice. Okay, so that was Judge Taney and Dred Scott, and that was the law of the land for a while.
The Civil War occurs—I don’t mean to discuss the Civil War with one sentence, but we have a lot of work to do this morning on birthright citizenship—so now we have the Civil War and we have the post-Civil War amendments, 13th, 14th, and 15th amendments. Everybody in this country knows there is such a thing as the 14th Amendment. Most people who know there is a 14th Amendment, they know it has something to do with slavery but are not all that sure. The 14th Amendment is perhaps one of the most important amendments ever in the history of the Constitution. Now, we can’t… we can spend a whole show on the 14th Amendment, Sheldon, but let’s discuss the 14th Amendment and the… it’s a good starting point for birthright citizenship. So what does the 14th Amendment, a Civil War, post-Civil War amendment, what does that have to do with this morning’s topic of immigration in general and birthright citizenship specifically?
Sheldon Gilbert: Sure. So after the Civil War, the country is fractured and broken and there are lots of different questions that have to be answered. But one of the first questions that has to be answered is, what is the status of these former slaves in the South? How do they kind of fit in to the fabric of the country politically, culturally, socially? But where do they fit in? Are they going to be citizens? Are they going to be treated like Native Americans as kind of dependent sovereigns? All these questions about where do these former slaves kind of fit in? And what do we do about the Dred Scott decision that said that anybody of African descent can’t be an American citizen?
Well, out of that debate, which has been going on for a long time, we get the very first sentence of Section 1 of the 14th Amendment. And Justice Gorsuch likes to say that the text of the Constitution is always a good place to start. I agree, so I’m going to read that first sentence for you and then we can talk about what that sentence means. But Section 1 of the 14th Amendment says, “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.” So that’s the very first sentence, and the purpose of that sentence first and foremost was to undo the Dred Scott decision, to wipe that off the books. But it does more than that. It creates a categorical rule for how one becomes a citizen of the United States.
Section 7: Exceptions to Birthright Citizenship [15:10]
Bob Zadek: So here we have the 14th Amendment, not thinking about immigration as such, trying to wipe Dred Scott out of American history with all of its ugliness. It says as clear as clear can be, I would suggest, if you’re born here, if you’re born here, you’re a citizen. Case closed. And that is the concept of birthright citizenship. There are no… there are qualifications, and the only… when Sheldon read that clause of the 14th Amendment, it said “subject to the jurisdiction of the United States,” that’s not the exact words, but that was the sense of it. And that is generally taken to mean there was a discussion at the time about, wait a minute, what if we have a foreign diplomat who is the representative from France who is here on diplomatic business, he works out of the French embassy, and his wife has a child? Is that child an American citizen? Congress at the time said, well, of course not. That foreign diplomat is subject to the jurisdiction of the laws of France and therefore it would be silly and unintended for that diplomat to have now an American baby, not a French baby. So the “subject to the jurisdiction thereof” most scholars believe, and the legislative history tells us that, that that was a carve-out only for that very small subset. It also, I should also mention, if you were an invading army and you were here—we never had an invading army except for the War of 1812—if you were an invading army and your wife, the wife of a soldier who was here, had a baby, of course that baby in the invading army is not an American citizen. So did I summarize pretty reasonably accurately the carve-out, if you will, of the only exception to birthright citizenship?
Sheldon Gilbert: Yeah, I think that the only other category they were talking about at the time would be Native Americans. Before the 14th Amendment was adopted, Congress adopted the Civil Rights Act of 1866, which had a provision that basically said the same thing where Congress is saying who can become a citizen and it says, just like Section 1 of the 14th Amendment, “persons born or naturalized in the United States and subject to the jurisdiction thereof,” except and then it explicitly mentions two of those categories you talked about: the children of diplomats and Indians not taxed. You know, the Native Americans enjoyed a particular status as dependent sovereigns, and so those were kind of the categories that most people were thinking of. But this is the language, the key language that creates the heartburn that kind of gets to the knob of what we’re talking about today. There are some scholars who say, “Well, hold on, ‘subject to the jurisdiction thereof’ has to mean something more than that. It has to mean that you are loyal, you owe allegiance to the United States.” And that is the area where people kind of get into the question of whether or not there’s a loophole in birthright citizenship.
Section 8: United States v. Wong Kim Ark [16:10]
Bob Zadek: This is Bob Zadek, I’m having a wonderful conversation this morning with Sheldon Gilbert from the National Constitution Center. We are discussing an issue which is in the news almost every single day, which is the subject of birthright citizenship. Specifically, should the children of illegal immigrants who are born by mere accident of birth, they are born in this country although their parents are here illegally, should they be entitled to, are they entitled to be citizens of the United States? This is a hot-button issue. You cannot discuss it unless you know the constitutional background. We will go into detail on children of illegal immigrants when we come back after a minuscule 30-second break. Please stay tuned.
[Ad read omitted]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. This morning we are drilling down to the important hot-button topic of birthright citizenship specifically. Should a child of illegal immigrants who by accident of birth is born in this country, although their parents are here illegally, should that child have from birth the… should that child be a citizen of the United States even though his or her parents are not citizens and perhaps never can become citizens? We are discussing this… we have to have this conversation on two levels: both on what is the law, what does the Constitution teach us, and also what should the law be, if you will, irrespective of what the Constitution may tell us. Because most people have an opinion on this topic and their opinion is not based on their study of constitutional law, of course not. It is based upon their opinion of their view of our country. And their opinion, of course, has great merit, great validity, is worthy of listening to. So we will try to sort out this subject both on its important constitutional history, on its federal law history, and on the basis of what should the law be. My guest this morning is Sheldon Gilbert from the National Constitution Center.
So Sheldon, before the break we just left the audience hanging. Now we have the 14th Amendment with its Civil War and slavery history having an important impact on this aspect of national immigration policy. And we have now the issue of how does it work if the parents of this baby born in the United States, how does it work if they are here illegally? Now, what has been… what was the post-Civil War history of this issue of the children of illegal immigrants who are born in this country? The 14th Amendment was enacted in 1868, I believe. So what has happened to this issue since the enactment of the 14th Amendment?
Sheldon Gilbert: Well, I think the next biggest moment in the history of this story occurs in the 1890s. You know, the story of the American West really can’t be told without the story of Chinese immigration to the West. Chinese immigrants were instrumental in building of the transcontinental railroad, for example. And I think where our story picks up with a guy named Wong Kim Ark, who’s born in San Francisco in 1873 and, this is a key point, to Chinese immigrant parents. And he works as a cook in San Francisco and when he’s about nine, Congress passes what’s called the Chinese Exclusion Act. And this bans more Chinese immigration and it blocks the Chinese from becoming citizens. So as when he’s a teenager, he leaves the country to visit China, but when he returns to the US, the immigration officials say, “Nope, you can’t come back into the country because you are not a citizen. You are excluded from citizenship under the Chinese Exclusion Act.” And his case goes all the way up to the Supreme Court. It’s a case called United States v. Wong Kim Ark. And the Supreme Court has to grapple with the 14th Amendment, Section 1, for really the first time. And Wong Kim Ark says, “Well, hey, wait a second. Yeah, my parents were immigrants, but I was born in the United States. And regardless of my race or ethnicity or of my parents, I was born here so I should be a citizen.” And the court agrees and the court says, “Well, absolutely. The 14th Amendment, Section 1 is very clear. You’re born here, you’re subject to the jurisdiction of the United States, you, Wong Kim Ark, are a citizen. Welcome to the country.” And that decision is handed down in 1898.
Section 9: Modern Debates on Allegiance and Jurisdiction [17:50]
Bob Zadek: So that should have resolved the issue. Why are we still talking about it today?
Sheldon Gilbert: Well, that’s a great question. We go back to that language, “subject to the jurisdiction thereof.” And some pretty smart scholars, including a good friend of mine, John Eastman at Chapman, says, “Hold on, this case doesn’t really decide the issue because Wong Kim Ark’s parents were here legally. Yeah, they weren’t citizens, but they did not illegally enter the country. So this case does not answer the question of what you do with individuals who have entered the country illegally and then have children here. That’s a different category.” And John Eastman and other scholars have said, “Well, those individuals are in a different category. They are not subject to the jurisdiction of the United States in the sense intended by the 14th Amendment because their allegiance does not run to the United States. They haven’t come here and gone through a process whereby they’ve given up their allegiance to their mother country and they’ve retained their allegiance to their mother country by coming here through unlawful means. And therefore they are not subject to the jurisdiction of the United States.” So that is the question that we have today. Does the 14th Amendment have this loophole that says that individuals who have not sworn allegiance to the United States through kind of a formal mechanism—whether that means getting a permanent resident visa or becoming citizens themselves—whether their children can be natural-born citizens because the parents are not in this theory subject to the jurisdiction of the United States?
Bob Zadek: Even though the 14th Amendment says nothing about this formality of swearing allegiance. It talks about subject to the jurisdiction of the United States. And of course, it would seem to me, and maybe I’m just not drilling down deep enough, but it would seem to me that you’re here in the country, you are subject to our jurisdiction. If you commit a crime, you can be prosecuted. You have… whatever the somewhat vague but I think pretty all-inclusive term “subject to the jurisdiction” means, of course you are subject to the jurisdiction. You’re not immune like a foreign diplomat might be. A foreign diplomat can’t get parking tickets, but you can if you’re here illegally. So the whole concept to me is sort of… it’s as if one is looking for, in my view, the slenderest of technicalities to try to find some wiggle room in the 1898 case rather than just adhering to the plain language of the 14th Amendment.
Sheldon Gilbert: Well, yeah, and that’s the argument on the other side. And you have some really interesting folks who are kind of rebutting this. So for example, Jim Ho is former Texas Solicitor General, he clerked for Justice Thomas, he worked for Senator John Cornyn, a very conservative individual who was appointed to the Fifth Circuit by President Trump. And he’s taken a really close look at this and he did a debate with John Eastman about this issue. He published a great op-ed in 2011 in the Wall Street Journal and says, “Wait a second, ‘subject to the jurisdiction thereof’ has to mean that you’re legally required to obey US law. And the only kind of exceptions to that are, as you said, diplomats. If it doesn’t mean that, then it’s an exception that swallows the rule. Anybody who comes into the country illegally, if they are not obligated to follow the law and are not subject to the jurisdiction thereof, doesn’t that create a huge problem for the enforcement of any laws, not just immigration laws, for those individuals?” And so I think that’s kind of one of the practical arguments on the other side is that if we accept that “subject to the jurisdiction thereof” means this allegiance or loyalty type thing and it means that you don’t have to follow US laws, that kind of puts us in a really topsy-turvy world.
Section 10: Caller: Robot Citizenship [20:40]
Bob Zadek: This is Bob Zadek, I’m having a wonderful conversation this morning with Sheldon Gilbert from the National Constitution Center. We are discussing an issue which is in the news almost every single day, which is the subject of birthright citizenship. Specifically, should the children of illegal immigrants who are born by mere accident of birth, they are born in this country although their parents are here illegally, should that child be entitled to, are they entitled to be citizens of the United States? This is a hot-button issue. You cannot discuss it unless you know the constitutional background. We will go into detail on children of illegal immigrants when we come back after a minuscule 30-second break. Please stay tuned.
Caller (Even): In general, that this is particularly pertinent. There’s a lady known as one name by the name Sophia, and she reads voraciously and I believe the word is rapaciously, and she even had honorary appearance before the United Nations. But she was awarded honorary citizenship by of all sources, I believe it was Arabia, and yet not yet the country where she was born or created. When asked in an interview how did she know she was a robot, her response was, “Hmm, how did he know he was a human?”
Bob Zadek: Well, I don’t know, that’s another show when we talk about whether robots can be citizens. Sheldon, I won’t… I’m afraid I might embarrass you by asking you to comment on robotics and their role in this discussion. But Even, we welcome your comments and thank you for giving us an idea for a future show. Maybe Sheldon and I will study up on robotics and citizenship and see if we can complete that conversation. Even, thank you so much.
Section 11: Does Congress Have the Power to Regulate Immigration? [22:20]
Bob Zadek: Now, Sheldon, on the subject of illegal immigrants and their progeny, the children they have in this country, let’s take a step back if you will. And as you mentioned in your introduction to the topic, that the Constitution had really very little to say about immigration and citizenship. Really very little. And there is a discussion, and I’ll invite you to comment, on Congress starting with the Chinese Exclusion Act in the end of the 19th century. We started to have Congress becoming active in legislating quotas, who can come into this country, our relationship to citizens of other countries, to immigration. Congress started to become active at the end of the 19th century. And there has been some discussion, and Sheldon I’ll ask you to comment, on whether in fact Congress has the enumerated power to legislate on this issue at all. I wonder if you can comment on that.
Sheldon Gilbert: Oh, you know, this is a really interesting question. As you know, we have a federal government of limited and enumerated powers. You know, the argument is that unless the Constitution spells out that Congress has a particular power, Congress doesn’t have that power. That’s what it means to have a constitution of enumerated powers. Well, there’s a very bright scholar named Ilya Somin who kind of carefully walks through all of the enumerated powers in Article 1 of the Constitution for Congress and says, “Wait a second, where in Article 1 is the power to regulate immigration? I don’t see it anywhere in there.” And if it doesn’t exist, then Congress does not have the power to regulate immigration. That doesn’t mean that states don’t have power to regulate immigration. The state of Texas might very well have power to regulate immigration. But where does Congress get the power to regulate immigration? And he says, “Look, you know, it would be surprising to have this immense power to regulate immigration not included and be just implicit when the framers of the Constitution included kind of much more basic powers that seem much less important in the list of enumerated powers, like the power to operate post offices.”
So if it’s not there, it doesn’t exist, is more or less the argument that Ilya Somin makes. Now, in response to that, those who argue that of course the Constitution gives Congress the power to regulate immigration, they point to a number of clauses that do exist. So for example, Congress does have the power to establish a uniform naturalization process. Naturalization is of course the process by which somebody can become a US citizen if they’re not already a US citizen. And the argument is basically if Congress has the power to make somebody a citizen, then it must have the lesser power to decide who can come into the country to be eligible for citizenship. So that’s one of the parts of the Constitution that those who say that there’s an enumerated power would point to. There are a number of other clauses, but that’s one of the most important.
Section 12: Executive Orders and the “Pen and the Phone” [23:50]
Bob Zadek: And I would present to our listeners that while of course it is of great importance to understand what our Constitution and constitutional history tells us about this subject, you can’t ignore we are human beings and we have a moral existence. And you can’t ignore the “should.” What should our country’s laws be with regard to illegal immigration? And of course, many libertarians, I would certainly include myself, believe that travel, the right to travel freely, is a right that everybody has purely by dint of being a human being. You have the right to travel from place to place and you should have the right, subject of course to reasonable limitations, disease and something like that, and if you’re a miscreant and issues like that. But in general, you ought to have the right to travel. And it strikes me that immigration in general, it is morally reprehensible to take anybody who simply wishes to have a better life for their family and for their children to come here and attempt to build that better life. I do not feel that there is anything special about me because of an accident I had nothing to do with, who my parents were and where I was born, that I am entitled to benefits of a country that somebody because of the accident of their birth, they are not entitled to simply because they were not born here. That’s a moral issue, we can’t… it’s hard to debate that issue, but of course that principle, which I believe the founders had in the founding era, teaches us they did have it, that important principle, that shining city on the hill principle, certainly is part of our rich philosophical history. And there is nothing in the Constitution that shows the founders were nativists and they felt, “No, you can’t come here.” After all, they all were themselves the children of immigrants, they came here, so therefore they did not see it necessary in order for them to deny the right to come here in others.
Now, Sheldon, on the subject of birthright citizenship, have there been any other cases since the case at the end of the 19th century that have spoken to this issue? And how did this issue avoid, since it’s become so important in our political life, how do you think it has avoided being visited by the Supreme Court?
Sheldon Gilbert: Well, look, there is no case directly on point. There’s no case after Wong Kim Ark that answers the question whether or not Section 1, Article of Amendment 14 covers the scenario of the children of unlawfully undocumented immigrants. Now, why is that the case? Why has this issue never reached the Supreme Court? Well, in part, Congress has stepped in and has legislated quite a bit in this area. And there are a host of federal statutes and executive orders and regulations that assume that birthright citizenship is the law of the land, that the Constitution provides birthright citizenship for the children of undocumented immigrants. So even outside of the Constitution, the Constitution is… even if the Constitution doesn’t say that someone who is the child of an undocumented immigrant is a citizen, there are a host of federal statutes and regulations that say that and that assume that. And so the constitutional question, you don’t even get to that without getting past the legislative question of birthright citizenship. So that’s kind of one reason that this issue of the constitutional question hasn’t reached the Supreme Court, because you’d have to get rid of all of these statutes and regulations first before you even get to the question of the constitutional dimensions of birthright citizenship.
Bob Zadek: Now, President Trump is not proposing a constitutional amendment to rewrite the 14th Amendment or alter its effect, and he’s not proposing necessarily legislation, and the legislation would be subject to a constitutional test if it was proposed. But he is proposing to act by executive order. He’s proposing to simply say, “I’m the boss, no you are not welcome here, you’re not a citizen if you’re born as the child of illegal immigrants.” So he’s invoking another issue which also has an interesting constitutional history, and that is the subject of executive orders. So Sheldon, in the time and a few minutes we have left, tell us where the issue of executive orders, this strange hybrid of making policy, fits into the conversation.
Sheldon Gilbert: Oh, I think it begins with the first sentence of the Constitution after the preamble. Article 1, Section 1 says that all legislative powers herein granted are vested in the legislative branch, right? So you know, going back to what you remember from middle school, the legislative branch legislates, the executive branch executes the law, and the judicial branch interprets the law. Now, we’ve kind of entered this topsy-turvy world, many scholars say, where the executive branch is doing more and more of the making the law rather than Congress making the law. And one species of the president making the law, critics argue, is the executive order. Now, on its face, an executive order is basically just a president telling a particular department, “I have authority from Congress or from the Constitution to do X, and I, the president, am telling you, a department, how you should do this thing,” right? So I’m just giving you instructions about how I expect the law to be executed.
And the theory for the basis for executive orders is most commonly located in what’s referred to as the Take Care Clause. The president has an obligation to take care that the laws are faithfully executed. And so the president says, “I think to faithfully execute the law, the law needs to be interpreted this way, or these are the types of actions that have to be taken.” This can quickly become very controversial. In the Obama administration, there were lots of conservatives and libertarians who said that the president was trying to achieve by executive order or executive action what the president couldn’t get done through Congress. And the argument was this violates basic separation of powers. And you know, one of the most famous examples is in the immigration space where President Obama, when he was asked by news reporters, “Well, can’t you just by executive order deal with the problem of Dreamers, children who came to the United States when they were very young after the DREAM Act didn’t pass?” and the president said initially, “You know, in the United States, I’m not a king, I can’t just wave a wand and do whatever I want.” But then later issued an executive—not an executive order, but an executive action—that essentially opened the path to do through executive regulations and other actions what Congress failed to do through the DREAM Act. And a lot of conservatives were very upset with that. They said, “Hey, you’re kind of skipping over Article 1, you’re skipping Congress to try and do what you want but you can’t get done through Congress.” So it’s very controversial. And now the shoe’s on the other foot and you have liberals saying, “Wait a second, conservatives, you guys are using executive orders the way that you said we’re not supposed to use executive orders to change kind of a fundamental policy question that you can’t change through changing the Constitution or through changing legislation.” So this is a boiling issue that cuts across administrations and is not going to go away anytime soon, but it’s a real important question.
Bob Zadek: Now, assuming a president does in some people’s opinion cross over the line and legislates through executive order in violation of Article 1 of the Constitution, the interesting question is, what can we, should I say we the people, what can we do about it? What is the process by which the executive order is checked? The president tells ICE, “Okay, here’s what I want you to do starting Tuesday morning. Here’s what you’re supposed to do,” and ICE follows instructions. ICE being Immigration and Customs Enforcement, and ICE follows the orders of the boss. How does anybody undo that? Is there a mechanism by which you can control executive orders?
Sheldon Gilbert: Sure. First and foremost, Congress can step in and say, “Hey…”
Bob Zadek: And Sheldon, we have about 30 seconds left, I’m sorry.
Sheldon Gilbert: Yeah, Congress can step in and deal with it, or you can go to court. And often these type of issues get resolved by the court, and that’s why if this does become an executive order, it may very well be reaching the Supreme Court.
Bob Zadek: So here we have, we started with birthright citizenship, an issue which is in the news almost every single day. We learned about the 14th Amendment, we learned constitutional history, we wondered if Congress has the power to legislate on immigration in general, and we also dipped our toe into executive orders. What an interesting debate, all flowing from the Constitution and birthright citizenship. Sheldon, this is just a big commercial for the National Constitution Center. How can people follow? We have about 10 seconds left.
Sheldon Gilbert: Join us at constitutioncenter.org, follow us on our podcast “We the People,” and we’d love to have you join us in Philadelphia.
Bob Zadek: Thank you so much, Sheldon. Thank you to my friends out there. I’ll be back again next Sunday for another constitutional Sunday morning. Thanks a lot, Sheldon.
Sheldon Gilbert: Thank you.