Was It Wrong When Your Guy Did It?

I agree that DJT’s EO ending birthright citizenship is unconstitutional. But I’m seeing a lot of this:

Unconstitutional Executive Orders? Where could he gave gotten that crazy idea from? I have an Uncle that loves to throw our the charge of “Whataboutism,” also known as pointing out hypocrisy. True Whataboutism is using someone else’s flaws to distract attention away from your own. There are certainly people out there who cheer their team, right or wrong. But a lot of people who do that wrap their cheerleading up in high-minded rhetoric and ideals. Pointing out “No, it’s just cheerleading,” is calling it for what it is. It’s no surprise the people who are having that pointed out to them don’t particularly like it. No one wants to think they are a sucker.

If it is high-minded ideals, can we all agree now that rule by EO, and specifically unconstitutional EO, is a bad thing? If yes, do we have a consensus on dismantling executive power and making the executive branch much weaker than it currently is? Or is it only bad when the other guy has the pen?

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49 thoughts on “Was It Wrong When Your Guy Did It?”

  1. I specifically asked my leftist former roommate about this, because he’s been apocalyptic about all things Trump.

    “Isn’t this an argument for rolling back the power of the President to it’s intended constitutional limits?, after all, a President, no matter who he is, can’t abuse a power he doesn’t have in the first place.”

    His answer, in all seriousness was

    “No, the problem is Trump and what he’s doing!” So, no issue with the President having all the power in the world, just an issue with “the wrong person” having that power.

    1. I think it’s principled to argue for a strong executive, but that also means having to accept that when it’s in the hands of the opposition, they will use that power to do a lot of things you don’t like. You can’t complain about unconstitutional executive orders, and act like guardians of it, when you looked the other way or cheered Obama doing the same thing.

      1. When Trump first came into power, I remember a lot of angst about Trump undoing Obama’s executive orders. “I thought you Trump supporters didn’t like executive orders!” seemed to be the rallying cry of the day.

        I found that deeply annoying, even though I’m not thrilled with Trump, nor am I thrilled with executive orders, mainly because I firmly believe that “if it can come into being via executive order, it can be cancelled by executive order”. I’m sure there are examples where a case can be made that this isn’t the case, but as a general rule of thumb, it’s a *very* good one.

  2. I am good with restricting EOs but it is not clear to me that this is unconstitutional. That part of the 14A was intended to do 2 things. Overrule Dred Scott which said that blacks couldn’t be citizens because then they could have guns. Prevent readmitted states from denying state citizenship to freedmen. It had absolutely nothing to do with immigrants. That expansion was a living constitution decision by the Warren Court. So while it may not be doable by EO,clearly SCOTUS could do it and probably Congress.

    1. Actually, there was debate about it during ratification. I’ve read them. The context specifically was Chinese immigration. The people who wrote that clause were well aware of the arguments over birthright citizenship and did not deny that would be the effect when the opposition called it out.

      1. I probably shouldn’t say opposition, though Senator Cowan’s successor, Simon Cameron, was absent in the ratification vote. But Cowan floated a number of amendments to poke holes in birthright citizenship using the argument that it would apply to “Asiatics,” which California had a huge problem with, don’t you know. Those amendments were shot down. The drafters of the 14th Amendment were well aware of what they were doing.

        The main argument is that at the time of ratification, there was no such thing as an illegal immigrant. You didn’t get the first restrictions on immigration at the federal level until several decades later. The idea that people here illegally are not “subject to the jurisdiction [of the United States]” isn’t something the courts have ever visited, as far as I know. I don’t buy that argument, but it’s one that can be made.

        1. I like the argument that there are two primary types of jurisdiction:

          partial, temporary- ie commit a murder and you are subject to our courts

          full, permanent- the above plus additional legal rights (voting, etc)

          The first is what illegal immigrants are, and should not get birthright citizenship.

          The second is what everybody else is.

          1. This is outright nonsense. Please educate yourself: http://reason.com/volokh/2018/10/30/jim-ho-on-the-fourteenth-amendment-and-c

            Based on your interpretation, birthright citizenship only applies to children of US citizen parents. Your “partial/temporary jurisdiction” applies to citizens and non-citizens on US soil, while your “full/permanent jurisdiction” applies to citizens only. This interpretation negates the original intent of the 14th Amendment.

            1. My position is the same as Eugene Volokh’s. I think it should be limited to children of people residing here legally. But if we want to do that, we have to amend the constitution.

            2. I’ve read that, and I disagree. Please don’t assume I haven’t “educated myself”.

              And your explantation of my interpretation is correct, except that it would have applied to slaves when the 14th Amendment, as they would have been under full and permanent jurisdiction- since they were not here temporarily or illegally.

              1. Well, you are still wrong at many levels, which leads me to believe that you do not understand what you read. Hence my comment that this is outright nonsense.

                Your classification scheme of “partial/temporary jurisdiction” vs. “full/permanent jurisdiction” simply does not exist. You are mixing things up and confusing things, likely for political convenience. What you mean is permanent and temporary residence and not jurisdiction. However, the Constitution does not mention residence. It mentions jurisdiction. The “subject to the jurisdiction thereof” clause is about a child of foreign diplomats. That’s it.

                Jurisdiction itself is a rather complex issue. Any person on US soil is subject to the US jurisdiction, except for foreign diplomats. Any foreign national on US soil is also still subject to the jurisdiction of their home country, independent from their US immigration status. Any US citizen visiting or living abroad is subject to the jurisdiction of the country they are in AND of the US, independent from their immigration status. Even foreign nationals abroad can be subject to the jurisdiction of the US, such as when they committed a crime against a US person, institution or government.

                Our immigration system is complex, outdated and overloaded. Congress refuses to fix that. Start with that! Birthright citizenship would not even be a problem if not for Congress failing to act. President Trump isn’t helping here with his rhetoric. He is just cementing the the current state of affairs. My suspicion is that this is all election politics anyway and there won’t be an Executive Order, just like there won’t be a repeal and replace of ObamaCare, Hearing Protection Act, repeal of federal gun-free zones, Wall, etc. These are all just empty promises to get voters to the polls. Instead, what we will likely get is a bump stock ban after the election and possibly more red flag laws.

                1. I’m actually right on so many levels which is what is causing you to not understand, leading you to think its nonsense.

                  I don’t care if it “doesn’t exist” as a current legal theory. Doesn’t mean its wrong. I’m definitely NOT confusing things, and I definitely mean what I say I mean. There is a difference between residence and jurisdiction, and they chose jurisdiction over residence for reasons (one of which there is what you mentioned).

                  Again, every citizen in another country is under a different jurisdiction depending on their status- temporary (visiting) or permanent (legal resident). And as you shown, even being a non-resident may bring them under a temporary jurisdiction, thereby proving my point! Thank you!

                  I’m certain Trump is playing games. And I’d much rather Congress do its job.

    2. Reading a bit on this it turns out it depends on what the meaning of “subject to the jurisdiction of” means. Apparently previous rulings have stated some classes of persons are not subject to jurisdiction, particularly children of foreign diplomats. Apparently the supreme court has never had to answer the question for illegal immigrants. Of course, statutory law also defines citizenship as well, so while it may be constitutional to state that birthright citizenship doesn’t apply to illegal immigrants, it likely does exceed presidential authority to do it by EO.

      1. The argument is that illegal immigrants aren’t subject to the jurisdiction of the United States. I think it’s a stretch, because the meaning of that is clear: are you subject to the laws of the United States. If you’re here, you are. The exception at the time, as you said, was understood to be for foreign diplomats and their children.

    3. Rejecting a decision based on who made it is corrosive to the rule of law, and embraces the rule of man.

      Tell me why it’s wrong, not who is wrong.

  3. Except, this order is not unconstitutional, nor is it in opposition to the 14th Amendment. In fact, it is completely in line with the 14th.

  4. “The main argument is that at the time of ratification, there was no such thing as an illegal immigrant”.

    God Almighty, you couldn’t be more wrong. the 14th Amendment wasn’t an abolition of US Sovereignty as a Freely Existing, Sovereign Nation-State. It didn’t grant and doesn’t grant citizenship to children who’s parents are not under the jurisdiction of the U.S. If you are in the U.S. ILLEGALLY, you are under the jurisdiction the Nation-State that of which are a citizen of, under that Nation-State’s Jurisdiction. Same thing for the Children of ILLEGAL ALIENS.

    http://www.nydailynews.com/opinion/ny-oped-no-birthright-citizenship-isnt-required-by-the-constitution-20181030-story.html

    1. You didn’t have any meaningful restrictions on immigration at the federal level until the Chinese Exclusion Act.

      But doesn’t comport with what it was understood to mean at the time of ratification. Go read Senator Cowan’s debates with Senator Trumbull and Conness.

      Of course John Conness was booted from office because of anti-immigrant sentiment in his district.

      The jurisdiction clause was intended to exclude diplomats and children of diplomats.

      Sorry, but the correct originalist view is that birthright citizenship was understood to cover anyone born in the United States, except for diplomat’s children. It’s fine to argue that public sentiment on that has changed/is changing, but that’s not an originalist view.

      1. “The jurisdiction clause was intended to exclude diplomats and children of diplomats”.

        That’s because they are under the jurisdiction of the Nation-States that they are from, and representing to the U.S. Common Law Precedent would therefore stipulate that those in the U.S. illegally, including their children, would be outside of the jurisdiction of the U.S.

        Benjamin Wade, considered the most radical of the abolitionists, along side Senator Trumbull, knew fully well, that Immigration was something that of which needed to be controlled, because immigration changes the political demographics of a Nation-State, and as they knew, it could pose a threat to the Constitution and Bill of Rights themselves.

        If we continue to allow people from around the world to dump their children on our shores as a chain for further family migration into this country, I would refer you to take a look at what is happening in the backyard of the NRA itself; The Commonwealth of Virginia.

        In another few years, thanks to good ‘ole demographics, Virginia is gonna be as “California-Blue” as California itself, and it is primarily because of international migration into the State.

        If the (I’m calling it what it is) “Anchor/Jackpot Baby” garbage doesn’t stop, immigration is going to turn America into a lawless nomad-zone very much like what California is now, within a decade. Give it 20 years, and these so-called “Immigrants” are just gonna wind up recreating the Countries that they left, because immigrants today (especially Illegals), are not assimilating into our society.

        1. I am convinced that birthright citizenship is a good idea: we don’t need the possibility of having two or three generations of people raised here, but not American citizens.

          Having said that, there’s absolutely nothing about birthright citizenship that requires chain immigration. Chain immigration is a problem, *regardless* of whether it applies to anchor babies or legal immigrants.

          1. If someone were writing it in today’s context, it would probably go something like: “of persons lawfully residing in the United States” instead of “under the jurisdiction thereof.” I don’t think a lot of folks here appreciate that when the 14th Amendment was ratified there were no federal immigration laws whatsoever. Congress only controlled naturalization. If you were here, you were here legally.

            You can make an argument that illegal immigrants should be excluded from birthright citizenship because of changes in immigration practices since the time or ratification, but you have to make that argument from a “living constitution” point of view, not an originalist one.

            1. That’s a good point – the Chinese Exclusion Acts were still in the future.

      2. I am out here in NV channeling my inner Harry Reid. Turns out he introduced legislation doing exactly this. Trump tweeted a video today of him saying this. So if we can all agree that legislation is a better way to do this than EO, re-introduce the legislation, pass it using that other Reid precedent about filibusters and make the Supremes decide. The Democrats will undoubtedly find some lower court judge to say it is unconstitutional but it will get kicked up to the Supremes. If we lose we are no worse off than we are today and we might win.

        1. I am 100% behind this. I’m not convinced that even a law would be Constitutional, but it’s infinitely more Constitutional than doing this by executive order!

        2. Which is Trump’s purpose. He understands that Congress will duck getting involved, so he’s forcing the issue.

      3. Sebastian – You wrote “Sorry, but the correct originalist view is that birthright citizenship was understood to cover anyone born in the United States, except for diplomat’s children.”

        I’m not sure that’s correct. The Indian tribes did not have birthright citizenship until passage of the Indian Citizenship Act in 1924. And as I understand it, the original understanding of the 14th was that the tribes were themselves independent nations. Therefore, no US birthright citizenship for Indians.

    2. ” If you are in the U.S. ILLEGALLY, you are under the jurisdiction the Nation-State that of which are a citizen of, under that Nation-State’s Jurisdiction. Same thing for the Children of ILLEGAL ALIENS.”

      Utter nonsense! Any person on US soil, except diplomats, are under US jurisdiction. Even people outside of the US can be under to US jurisdiction, such as if they committed a crime against a US person, entity or government.

      Foreign nationals living in the US are under US jurisdiction AND under the jurisdiction of their citizenship country.

      1. But they are only under temporary jurisdiction, not permanent jurisdiction.

        That’s the difference.

        1. Please point out the clause in the Constitution or a SCOTUS decision that defines temporary and permanent jurisdiction. It doesn’t exist.

          Even if someone would be considered under temporary US jurisdiction, they still would be considered under US jurisdiction at that point in time and the 14th Amendment would apply. This argument is flawed at so many levels.

          1. You could use Elk v. Wilkins to make a case for tourists and illegal immigrants not being “under the jurisdiction.” Elk was rendered moot by the Indian Citizenship Act of 1924, but it’s not been formally overturned. Wong Kim Ark only considered citizenship of people born in the United States to legal residents of the United States.

            1. Elk v. Wilkins s certainly an interesting case, but it is different due to the special status of native people in the US at that point in time and the political history associated with it: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2610859

              Elk v. Wilkins could be considered overturned by United States v. Wong Kim Ark on the argument of owing allegiance to another nation, as both, Elk and Ark, owed allegiance to another nation when born in the US.

              Elk v. Wilkins solely used the argument of Elk owing allegiance to another nation when born in the US to decide if he was under US jurisdiction at that point in time. That only worked due to the special legal and political status of Indian reservations when this was decided.

              By the way, Elk v. Wilkins does not argue temporary US jurisdiction, which does not exist in the way people use it to argue for restricting birthright citizenship. Elk v. Wilkins argues that Elk simply wasn’t under US jurisdiction when born.

  5. This subject is hashed out in considerable detail in this thread:
    http://voxday.blogspot.com/2018/10/ending-birthright-citizenship.html

    There were about 130 comments last night, now up to ~230.

    Basically, it is expected that some federal level judge (probably Hawaii) will have a knee-jerk spasm and ban it. Let the fireworks begin!
    I think the consensus was that, yes, Trump can do it if carefully crafted, but it needs to have Congress do their own version to make it stick for more than one President’s term.

    1. That’s not the point. There was plenty of executive overreach in the Obama era where the courts ruled against the executive for exceeding its authority. The executive branch grew in power for the entire 20th century. You can’t argue that’s good, and then bitch and moan when the opposition exercises the same power. Either a strong executive is good, or it’s bad. It’s can’t be good when your friends are in charge, and bad when they’re not.

  7. I think a question helping to define “whataboutism” is, does the argument do anything to inform the current situation, or is it just a way of saying “So’s your mom!”, figuratively speaking.

    I believe the classic example of Soviet Whataboutism was, when they would argue “we never invaded you, but the Allies invaded us, in 1918/1919. Seldom did that have anything to do with the contemporary situation regarding what they were doing.

    I’ll never apologize for Obama, but what did his attempts at unconstitutional executive orders teach us that is relevant to what Trump and his toadies claim to be attempting? Other than that chief executives will always push or ignore their limits, I don’t know. That partisans will defend what their own presidents do? Tell us something we don’t know!

  8. The question of birthright citizenship isn’t about birthright citizenship in general, it is about the narrower issue of birthright citizenship for the children of illegal aliens. Which apparently is a something actually very novel and rests upon a sloppy Supreme Court ruling dating from the early 1980’s.

    Yes, a Trump E.O. can not overrule the Supreme Court, but it could be the basis for giving the Supreme Court an opportunity to revisit the issue. Of course, with Justice Roberts, I suspect the Court will decline to hear any appeal in the first place.

    Sadly a complex issue like birthright citizenship is ripe for sophistry and demagoguery, so the News Media, acting as the reliable mouthpieces for the Left Wing agenda, will tear Trump apart on this topic.

    1. I’m saying that from the point of view of originalist analysis, regardless of what may or may not be good policy, the conclusion I come to is that children of illegal immigrants born here are citizens. These arguments, that it would apply to all manner of immigrants, was brought up at the time of ratification, and it was ratified anyway. Attempts to carve out exceptions for undesirable immigrants were defeated. It was brought up in the debates the “problems” in California with Chinese immigrants, and it passed anyway. Being bound to an interpretive policy of the constitution means you take that approach even if it leads to a result you find politically undesirable.

  9. I suspect that the vast majority of Americans were unaware that birthright citizenship for the children of illegal immigrants or of temporary visitors was even a thing.
    If nothing else, Trump’s mentioning of the issue has made them aware of it now. The USSC has never addressed the issue. Maybe now they’ll get their chance.

  10. I had a strange experience yesterday. I shouted down a canyon “subject to the jurisdiction thereof” and the echo came back “well regulated militia, well regulated militia, well regulated militia, well regulated militia, well regulated militia…”

    I wonder how it will work with other weasel-words? Someone is sure to try it!

    1. It is fascinating that at the time of ratification of the 14th Amendment, the congress was still collectively acknowledging that the constitution imbued the federal government with no power whatsoever to control immigration – only naturalization. That despite popular/populist demands that immigrants be excluded, based on nearly identical arguments to those today. It would take close to another 20 years for an activist Supreme Court to discover the federal power to regulate immigration.

      I’m only suggesting that that too was a similar brand of radical, and maybe the two things – 14th Amendment and obeying the constitution with regard to immigration – should be thought about as part of the same package. It would be a fascinating avenue for historical research.

      1. I posted this to Sebastian in an above sub thread:

        “The jurisdiction clause was intended to exclude diplomats and children of diplomats”.

        That’s because they are under the jurisdiction of the Nation-States that they are from, and representing to the U.S. Therefore, Common Law Precedent would therefore stipulate that those in the U.S. illegally, including their children, would be outside of the jurisdiction of the U.S.

        Once again, regarding the 14th Amendment, it wasn’t an abolition of US Sovereignty as a Freely Existing, Sovereign Nation-State. And once again, Benjamin Wade, considered the most radical of the abolitionists, along side Senator Trumbull, knew fully well, that Immigration was something that of which needed to be controlled, because immigration changes the political demographics of a Nation-State, and as they knew, it could pose a threat to the Constitution and Bill of Rights themselves.

        1. I’ve read the debates. First hand sources. Where did either Trumbull or Wade say anything other than birthright citizenship was the meaning. There was no illegal immigration when the 14th Amendment was ratified. There couldn’t be, because there were no immigrated laws at the time. That illegal immigrants aren’t subject to the jurisdiction of the US is an interesting interpretation of the citizenship clause, but it’s not an originalist one.

  12. The saying in action: if progressives didn’t have double standards they would not have any standards at all.

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