Rarely has he stated the logic of Trumpism so succinctly. When Trumpists call out their opponents for doing something objectionable or unconstitutional (as Trump has frequently described DACA), they’re not saying that Americans shouldn’t behave this way. They’re saying they should be allowed to behave just as badly.
How can we make America great again without a race to the bottom?
DACA was unconstitutional, allegedly, because it represented a power grab by the executive of the legislature’s authority to set immigration laws. If Congress can’t or won’t act on the matter, the president doesn’t magically acquire extra power to act himself. Republicans used to believe that — emphasis on “used to.” As it is, I can’t tell if Trump has seized on this birthright-citizenship EO idea because he’s knowingly BSing us or because people (i.e. Stephen Miller) are knowingly BSing him behind the scenes. He can’t possibly believe, as he suggests in the clip, that Congress might address this issue down the road. Congress isn’t going anywhere near it even if the blue wave fizzles before Tuesday. They can’t even work out a deal for wall funding and a DREAM amnesty, for fark’s sake. Asking them to play with material as radioactive as citizenship when they’re paralyzed on even basic immigration compromises is like asking them to get cracking on sweeping entitlement reform. They can’t even cut discretionary spending. They can’t do anything! They’re surely not doing this.
Mark Krikorian’s take on Trump’s EO is the closest thing I’ve seen to a compelling argument for it. The order will almost certainly be blocked but at least it’ll put the issue on the national radar and maybe force the Overton window in the direction of questioning automatic citizenship for children born to illegals. Minor problem: Since the endgame of this process will come in the Supreme Court and since it’s highly, highly likely that at least one conservative justice will vote with the liberals to block Trump, that Overton window will soon close tightly.
[A] narrowly tailored order, specifically related to the administrative functions of the executive, would be a good vehicle for clarifying the issue. The president has every right to his own interpretation of an ambiguous constitutional or statutory phrase. He can declare that he interprets “subject to the jurisdiction” to mean that only kids of citizens and permanent residents should get automatic citizenship at birth, and that this interpretation bars, say, the State Department from issuing passports to the newborn children of birth tourists. (Not issuing Social Security numbers to newborns who don’t have at least one citizen or green-card parent would be more difficult in a practical sense because of the central role of state health departments in the process.)
Once the first few Chinese or Russian or Turkish maternity tourists were denied passports the ACLU would file suit in San Francisco federal district court on their behalf, the court would enjoin the new policy, the Ninth Circuit would uphold the lower court, and the case would come before the Supreme Court.
Indeed, and Trump would lose. What then? Andy McCarthy adds a further complication: America’s statutory law on immigration echoes the Fourteenth Amendment’s grant of natural-born citizenship to anyone who’s born within the United States and “subject to the jurisdiction thereof.” As such, John Roberts and the Democratic appointees could swat away Trump’s EO without even reaching the constitutional merits of it. “Congress has spoken,” they might conceivably say, “and so it falls to Congress, not the president, to clarify whether natural-born children of illegal immigrants are entitled to citizenship.” Once they make that move, the matter is effectively concluded since, as noted, Congress will never touch this.
There are prudential reasons to oppose an EO too. One of the core arguments against DACA was uncertainty: If the president grants provisional legal status today via prosecutorial discretion, the next president can un-grant it on a whim by exercising that same discretion. Making something as momentous as one’s right to remain legally in the U.S. dependent upon which party controls the White House is reckless. Making citizenship dependent upon it is unthinkable. Imagine Trump’s EO being enforced and illegal-immigrant parents ending up deported along with their infant child, who was born on U.S. soil. Would that family be allowed to reapply for admission in 2021 if President Elizabeth Warren rescinds Trump’s order? Do they have to go back home again in 2025 if President Mike Pence reinstates it? The chaos inherent in making citizenship status subject to executive prerogative would so offend the Supreme Court, I think, that they’d find grounds to strike down Trump’s order for that reason alone. No precedent will be allowed to stand in which the president effectively unilaterally decides whether you retain your basic rights as a citizen, beginning with the right to vote.
Gabriel Sherman’s sources think this is all about next week’s election, with Trump kitchen-sinking his closing argument amid a bunch of bad news and darkening polls. (“’All of this feels like Hail Mary passes—throw red meat to drive turnout,’ a former West Wing official said. ‘In a way, the Kavanaugh bump peaked too early.’”) Maybe. But maybe it’s Trump’s way of adding a new demand to the great halting immigration negotiation between left and right, an “ask” which he fully expects to concede at a later date in exchange for something he really wants. If he agrees to sign something affirming birthright citizenship for children born to illegals, will Democrats finally give him money for the wall? How about if he throws in a DREAM amnesty as well? Consider that a sneak preview of next year in case Democrats have a big night next week.
"You don't need a constitutional amendment for birthright citizenship," says President Trump: "If president Obama can get DACA approved… We can do this by executive order." https://t.co/w5dEhwdW25 pic.twitter.com/yyXu3KH6I8
— The Lead CNN (@TheLeadCNN) October 31, 2018