Tuesday, October 30, 2018


If you're reading this blog, you're probably not a regular reader of Ben Domenech or the Federalist. But I want to draw your attention to this Federalist piece by Domenech, which notes that even one of the most prominent anti-immigration zealots opposes an end to birthright citizenship.
Interestingly enough, ending birthright citizenship is opposed by immigrant hardliners like Mark Krikorian, because he believes it is both impractical and has longterm negative ramifications. On the legal question, Krikorian believes the birthright citizenship issue would have to be decided by the Supreme Court or a Constitutional amendment. But he wouldn’t want to change that regimen, because of the negative outcomes it would create with stateless children representing a semi-permanent underclass.
What does this mean? Domenech elaborates:
Consider the practical outcomes of this after half a decade: Ending birthright citizenship would make the United States more like the rest of the world – it would also end an incentive for immigrants to come here, which is of course the actual goal of most of the people advancing this argument. But what it will not do is provide any incentive for people already here illegally to leave. Instead they will stay, and have children anyway.

Rather than the previous agreement – where we owe these children the protections of the Constitution, and they owe their allegiance to our flag – there is no such commitment made. They will be stateless, as illegal in their presence in the United States as their parents, with no nation to call home.

In our current understanding of the 14th Amendment and birthright citizenship, the existence of a permanent underclass of native born non-citizens ends at the first generation. Their children are as American as you, and integration into American life begins in a way that discourages the creation of multigenerational non-citizen ghettos. In the absence of that understanding, say hello to a massive underclass of people and families with a greater incentive to form exactly the kind of hardened ethnic conclaves we see in Europe – and the outcomes and risks that come with such ghettos.
So much of what hard-liners hate about immigration could be exacerbated by an end to birthright citizenship. Also:
The longer term political ramifications here would be obvious and severe: an inevitable and powerful push for a mass and total amnesty for these multi-generation non-citizens that would come the instant that Republicans no longer are in power.

Polls show Republican voters consistently support a citizenship solution for the Dreamers, and that this would effectively create millions more. The pressure to grant mass amnesty would be a thousand times as heavy in an environment where the semi-permanent underclass has no hope of integration for their children, and it would inevitably eventually succeed – creating a cohort of millions of voters with a loyalty to those who backed it.
In other words, ultras like Krikorian don't want to get rid of birthright citizenship because it will make the immigrants affected more sympathetic, and they'll be even angrier at the Republicans once they (inevitably) win citizenship rights.

This is a repellent way of looking at the problem, but it's good to know that even some immigration-bashers won't necessarily be on board with the Trump executive order, if it ever happens. If even the anti-immigration right is split on the idea, I can't imagine that it will survive a legal challenge, even in a federal court system saturated with Trump judges.

On the other hand, Tom Hilton's comment in response to the previous post raises a serious concern:
This EO can do a fuckload of damage before it ever gets to any court. If Trump instructs ICE to round up & deport US-born children of undocumented immigrants it'll be cold comfort to those stranded in Mexico or Honduras or wherever that some district court judge issued an injunction against ICE doing the thing they already did. And it's not as if an injunction would even necessarily stop them; remember that court order on reunifying separated parents and children, with a deadline of 3 months ago?
Tom is right about how much damage can be done by the administration in a short amount of time. But in the end I think this will be stopped, because non-Republican judges will be solidly against it and Republican judges will be divided.


UPDATE: As Hob notes in comments, Mark Krikorian currently says that we should end birthright citizenship now -- in fact, "End Birthright Citizenship Now" is the title of a piece he wrote for National Review in 2015. But he was a skeptic prior to that, and in the 2015 piece he recommended that the U.S.-born children of the undocumented be granted citizenship if they live here ten years, an idea he repeated on Twitter yesterday.

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