Gonna be reeeaaalllly interesting to see how Republicans react to Donald Trump’s midterm pot-stirrer on birthright citizenship. Will they join the president in full-throated support of the same kind of executive authority over established law and the Constitution as they opposed with Barack Obama and DACA? Or do they risk alienating the base by pushing back and insisting on a more constitutional process?
Lindsey Graham ups the ante on his new Trump-channeling persona by cheering his fighting spirit. At the same time, however, Graham offers to split the baby by eclipsing the idea of an EO and channeling it through Congress instead:
Sen. Lindsey Graham (R-S.C.) on Tuesday said that he will introduce legislation to end birthright citizenship after President Trump suggested he wanted to do so through an executive order.
“Finally, a president willing to take on this absurd policy of birthright citizenship. I’ve always supported comprehensive immigration reform — and at the same time — the elimination of birthright citizenship,” Graham said in a string of tweets.
He added that he plans “to introduce legislation along the same lines as the proposed executive order” from Trump. Congress is out of session until Nov. 13.
It’s worth pointing out that Graham has been in Congress since 1995 — first in the House and since 2003 in the Senate. In that time, Graham has raised birthright citizenship has a pressing issue once, in 2010. In 2013, Graham was among eight senators who joined a bipartisan comprehensive immigration reform effort, joining other Republicans such as the late John McCain, Jeff Flake, and Marco Rubio, who got shredded over it in the 2016 primaries. Not only did the reform package fail to address birthright citizenship in any way, it provided a path to citizenship for those who entered the country illegally without having been born here at all.
So for an “absurd” situation, Graham didn’t seem terribly focused on it until today. Even when Graham did bring up birthright citizenship eight years ago, he acknowledged that it was constitutional and that “three court cases” had upheld it. What was the solution? A constitutional amendment:
“Birthright citizenship I think is a mistake,” explained Graham. “We should change our Constitution and say if you come here illegally and you have a child, that child’s automatically not a citizen.”
Graham signaled his intent to introduce a constitutional amendment to change the existing immigration law as it stands today.
“People come here to have babies,” argued the Republican lawmaker. “They come here to drop a child. It’s called “drop and leave. To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”
Eight years later, Graham now thinks that legislation will resolve the problem. It’s certainly more within the constitutional framework to address the issue through legislation, but the “three court cases” — Wong Kim Ark and Plyler being two of them, presumably — would pre-empt the legislative track. Why not propose the constitutional amendment instead? Either Graham has rethought this in some way in the hour or so between Trump’s announcement and his response, or Graham’s trying to redirect the issue onto safer and less volatile ground.
Trump’s VP happened to be doing a live interview with Politico this morning when the broadside went out. Pence denied that Trump was using a “scare tactic” to motivate Republican voters, and declared that the Supreme Court had never addressed the issue of birthright citizenship in relation to illegal immigration (which they actually did in Plyler). However, Pence shrewdly put this into the same categories as other “magnets” for illegal immigration, and said that it should be “reconsidered” as part of broader immigration reform:
“We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally,” Pence said. pic.twitter.com/r2r65vQeT7
— POLITICO (@politico) October 30, 2018
Neither of these amount to an explicit endorsement of an EO, probably because both men understand it wouldn’t work. It might be worthwhile to test the Supreme Court by passing legislation restricting citizenship grants to see whether the court would attempt to graft it to Wong Kim Ark, which would keep the effort in the legislative arena where it belongs. However, Graham had it right eight years ago — without a constitutional amendment, this is going nowhere, except as what Pence denies it to be: a midterm election play for hardcore security voters.
Update: Fixed one instance of Plyly rather than the correct Plyler.