As funerals have begun in Pittsburgh for the victims of a white supremacist mass murderer, and as the nation continues to shake its collective head about an ardent Trump supporter sending pipe bombs to people Trump attacks, and with the election mere days away…Donald Trump and the Republicans clearly had to change the subject.
Local DREAMer activist Astrid Silva nailed it:
Everyone, huddle in. I have something to whisper ***Trump is using ending birthright citizenship so we can forget pipe bombs and dead worshippers at the hands of white domestic terrorists, lets show him both matter – if you are elegible, GO VOTE*** but whisper it, ok?
— Astrid Silva (@Astrid_NV) October 30, 2018
Trump portrays himself as a self-made man, a brilliant businessman, the consummate deal maker, the “very stable genius” and so much more, none of which is true. But one truth about Trump that even his most committed detractors must acknowledge is that Donald Trump is one of the most accomplished media whores ever produced in this or any other nation. For Trump, attracting media attention isn’t a skill or a knack. It’s his occupation. It’s what he does.
And so, like the tax cut that Trump promised Congress would pass by Election Day — better get on the stick! — his assertion that he can change the 14th Amendment by executive order has to be viewed as what it is, an election stunt.
“I really do not think there is a serious legal argument about birthright citizenship, from the text of the 14th Amendment, the history of citizenship law and Supreme Court precedent,” Prof. Michael Kagan, director of the Immigration Clinic at UNLV’s William S. Boyd School of Law, said via email. “This seems like a divisive distraction a week before the election.”
Yes, it most certainly does.
That doesn’t mean Trump might not revisit the issue later. Republicans, including Nevada’s Dean Heller, were openly musing about ending birthright citizenship long before any of them would have thought they would become sycophantic Trump worshipers.
Doing it by executive order, rather than by amending the Constitution, is a somewhat novel approach, though.
There are a small group of people who contend that the founders of the Civil War and Reconstruction era constitutional amendments never intended that the 14th amendment grant citizenship to children born of foreigners.
But those folks are extreme (literally) outliers, constitutional scholarship’s fringe equivalents of the handful of scientists who deny that human activity has an impact on climate change (assuming they’re not among the fringier fringe who deny climate change altogether).
A more mainstream view of the authors’ original intent — a concept Republicans purport to revere — is reflected in a paper written a dozen years ago by James Ho. As Bloomberg’s Justin Fox notes, Ho is a conservative lawyer from Texas who was appointed to the U.S. Fifth Circuit Court of appeals last year by none other than Trump.
Heller voted to confirm him.
By Ho’s reading of the Senate debate in 1866, Senators clearly understood that the birthright citizenship clause of the 14th Amendment intentionally applied not only to former slaves, but to children of foreign parents. “This understanding was universally adopted by other Senators,” Ho wrote, “indeed, some opposed it precisely because they opposed extending birthright citizenship to the children of aliens of different races. But no senator disputed the meaning of the amendment with respect to alien children.”
Unfortunately, the right’s fetish for original intent is not as pure as they’d like you to believe, as evidenced by their utter blindness to the first four words of the Second Amendment. It’s difficult to imagine that, given a choice between an intellectually sound reading of the law, and rendering a purely political decision in Trump’s favor, Brett Kavanaugh would choose the former.
And the chances of a Republican-controlled Congress standing up to Trump to thwart a racist executive order seems about as plausible as Republicans in Congress standing up to him over anything else. Those chances are twofold: slim, and fat.
One way to assure that Congress does stand up to Trump is to change Congress, that is, to heed Silva’s admonishment, and vote. Trump knows it, which is why he’s throwing stuff at the wall in the hopes that people stop thinking about a murdering white supremacist anti-Semite, a Trump fanboy in a white van, and the perhaps irreparable harm Trump inflicts on the nation, daily.