This op ed piece appeared this morning in the Times as to American born children of the irregularly documented. The author pretends to offer an 'effective and pragmatic solution' to resolve the conflict whose extreme demands are further change to the Fourteenth Amendment respecting birthright citizenship, demands which the author claims Dems will find it difficult to fight and which are said to be set for Congressional hearings before the election.
His Overton Window 'solution' to this manufactured conflict is the notion of citizenship based on what he calls mutual consent. But his solution is to condition birthright citizenship for children of the irregularly documented on what he calls a genuine connection to the US, a certain number of years in US schools being his example or his suggestion of the British notion of no long absences from the country in a ten year period. Trying to be a mediator who says he won't kill all the children, just some of them who don't measure up, after ten years' probation.
Another case of a solution worse than any problem giving rise to it, which shows why the simplest solution, birthright citizenship period, is still the best solution.
The author of this article is said by NYT to be a law professor at Yale, and he should have known better. The article is almost a test of how many foolish and unsubstantiated Republican talking points one can put into a single Op Ed, in support of a solution truly worse than the problem.
This is still another case of excessively and conveniently inventive manipulation of what is alleged to be history, to put things in the minds of the drafters of the Fourteenth Amendment and therefore in all of our lives plus a dollop of Constitutional amendment by footnote, all to break the absolute protection of birthright citizenship, which can be followed by an unlimited number of other breaches.
THE ARTICLE ITSELF.
First, this writer has fact issues of various kinds. The most important of these is his notion of the exceedingly pregnant skipping across the border right before birth, to change the legal position of the very soon to be born child. As most of us read earlier in the week in the Pew study, a large percentage of all babies born here to irregularly documented mothers are born to women who have on the date of delivery been here at least a year, often five years or ten years, not those hurrying so that the Border Patrol will not be doing the delivery. Yet, the solution covers not only this tiny group, but all US born children of the irregularly documented.
Second, he simultaneously argues that, in writing the Fourteenth Amendment, Congress did not discuss the status of children of what he calls illegal immigrants because there was no federal law in existence at that time making any immigrant whatever 'illegal' so as to permit the question to arise. However, in the very next paragraph, he also says that
it is hard to believe that Congress would have surrendered the power to regulate citizenship for such a group, much less grant it automatically to people whom it might someday bar from the country.
That is to say, Congress cannot have done what it did because, had it been thinking about making some immigrants illegal, which he says it wasn't, it wouldn't have done what it did. And therefore it can't have done what it did. And didn't do it at all, no matter what the text says. Eli Yale should be ashamed of this.
His worst historical offense IMO is to conclude from a contretemps during the war of 1812, that Congress thought then and in 1868 that citizenship arose from 'mutual consent' of the governor and the governed. In the professor's mind, this doctrine explains why Congress at the same time as it dealt with the Fourteenth Amendement, passed the first statute by which a US citizen could disclaim citizenship. He assumes this for a time when the list of those actually residing in US territory was not information the US in fact actually had, given the relatively primitive state of the US census and the wide area it had to cover, avoiding the problem that mutual consent demands mutual knowledge of existence of, as well as consent of, those being mutual.
He also conveniently did not deal with the burning problem of the time, that part of what the Fourteenth was intended and designed to do was to confirm citizenship in both Federal and state systems by birth, in a time when the claim was made that former slaves, and all of their descendants, were not citizens of either by birth or any other way, and there were all of those fluttering issues about the future status of Confederate soldiers and politicians who had foresworn their citizenship during and as part of the cause for the recently concluded Civil War. Putting the Fourteen and the Expatriation Act in context, would make the statute a bolster specifying those few things which could legally strip a person of citizenship and the Amendment a very clear and very simple statement of who had citizenship, how one became a citizen and what it was dependent upon and what the scope of that citizenship was, both Federal and state. The whole point of the exercise was that no state nor the Feds could deny the citizenship of anyone born here, as certainly many states were doing their best to deny, or discriminate as to the privileges and immunities of citizenship among citizens, nor could anyone treat its people, citizen or not, in unequal fashion. There was nothing mutual intended about it, the states having no choice whatever in the matter after the Amendment was adopted.
And since the only thing he has found from the Supreme Court is a 1982 footnote, although one square on point, saying that American-born children of illegal immigrants were Constitutional citizens, he then concludes from what has been noted, that Congress has the power to act on birthright citizenship without an amendment at all. You normally have to have several things in order to get to a non sequitur, but he doesn't have that, but nevertheless vests Constitutional power in Congress to change the amendment. Somehow I don't think footnotes would help.
To all Kossacks who are tired of trading back and forth the list of Western Hemisphere countries who do use birthright citizenship, I bow but do not repeat that list, except to note that this particular Yale Professor only found one of them, Canada.
It is not surprising that his pragmatic solution stinks.
It's first problem is that it is linked to the literally sprinting Mom, the basically fictitious mother who briefly enters the country and then returns home once the baby is safely born here, not by any means a plurality of the babies under discussion at all, just the most exaggerated case, on which to hang a proposal not in fact directed to such babies.
He suggests what he calls requiring a 'genuine relationship' to American society as the term is understood in what he calls International Law. Noting with approval that Britain is said to have a doctrine similar to his which requires ten years' residence by the child with no long absences from the country, the proposal is
Congress should do likewise, perhaps conditioning birthright citizenship on a certain number of years of education in American schools, such children could apply for citizenship at, say, age ten. The children would become citizens retroactively, regardless of their parents' status.
THE SOLUTION PROPOSED.
There are a series of problems with the solution.
- The class of persons for whom this compromise is determined to be necessary is the smallest part of the birthright babies with improperly documented parents, but purports to create a solution binding all children in this limbo location, not just those with allegedly spry mothers at a critical moment, based on that extreme sample only, and addressed to the perceived equities or want of them of the extreme sample only. There is no weight given to the status of the parents, and their 'genuine connection' to to the US, such as peaceful and undetected residence, competence in English and in functioning in it with others consistent with time of residence, employment taxpaying, and the complete absence of acquaintance with police forces, all of which appears to be the more usual case if Pew is right.
- At present, the baby's status is determined as soon as he or she is born alive, and there are no waiting periods of ten years or anything similar during which the child will be in legal limbo, especially a concern where those limbo years are those where the child itself is most helpless and unable to form any opinions of its own on this sort of issues. In the present rule, the baby really is a separate person at law, and the requirement placed upon him in exchange for citizenship is the small amount a baby can do, that is, be born alive and stay that way in a stated place inside the country. There is no more a sane state can ask of a newborn child.
A fatal, IMO, problem with this proposal is that the the baby itself has no rights for ten years, neither citizen nor alien. The adults in charge of the child in this waiting period determine for him whether he will have the qualifications at the end of the ten years, be it no excessive foreign travel or five or six years of America schools (Please let us not get into religiously conservative parents who exercise their maybe-First Amendment rights to home school them), or whether he or she uses English as his or her first language or does so 'competently', or the child has serious medical issues, analogous to those which keep adults out, or whatever list of cockamamie 'genuine connections' a xenophobic Congress can concoct and can amend from time to time as it sees fit and then have a newly created bureaucracy try to figure out and enforce.
The very thought of Jeff Sessions making up a list of things children can be excluded from the country for not being, the sheer politics being imported into citizenship decisions by this notion expressly for those too young to understand much less do politics, and the carefully created possibility of allowing political issues of the moment to be added to that list, makes me want to gag. Barbaric cruelty is no objection to a principled position by a Jeff Sessions, so the only way to avoid that possibility is not to provide the opportunity in the first place.
And some of these things are not determined by parents, such as whether Joe Arpaio grabs the family and does his deportation thing for the whole family or just the parents before the ten years are up, or does it for every family as soon as the paperwork seeking confirmation of citizenship of the child is filed (since that paperwork admits the irregular status of parents to invoke the filing, and even gives addresses), or if the parents die or become otherwise unavailable in the usual range of the ways parents do in our society in all classes and races, and the child must go to state care or relatives if same can be found and where same can be found, so that neither parents nor child have the opportunity to make the ten years' residence test. There is of course no thought in this that if the parents have been here uneventfully for X years, this entire process is not necessary.
When the child is ten, under this proposal he gets to apply and then his citizenship will be retroactive. This does, however assume that the child passes the list of high hurdles to determine his genuine connection to the US. If he doesn't pass, if the parents didn't get it right or something happened, or the determining authority thinks he doesn't speak English well enough, or his grades at school are not good enough, or whatever else is not enough, or he was out of the country two days too many, or he got into any kind of juvenile trouble, he not only does not get citizenship, but he is a person with no right to be in the country who has been inside it for ten years, and gets deported. at the age of ten under terms where he may never ever be allowed to return.
All this happens independently of what happens to his parents. It is entirely possible under this setup that the parents are for one reason or another not deportable when the child is ten, but the child is, and then it is the child who would go, not the parents.
At the very least, this is an Immigration Lawyers' and ICE Bureaucrats' Full Employment act, but it does not improve justice and fairness for children, rather holding their caregivers for ten years of ransom and supervision for an uncertain outcome. A form of slow, and expensive, bureaucratic torture of uncertain outcome the whole time, and no benefit to either the child or the nation.
AN ANALOGUE - ANOTHER AMERICAN ATTEMPT AT CITIZENSHIP AFTER THE FACT AND DONE BY RULES AND COMMITTEE.
I note a partial American analogue here for what comparative information it provides, and painful as it is,which is presented as one form of bureaucratic control of citizenship decisions moving on an ongoing basis through time, that has been used in this Country for an extended period of time. (Full Disclosure: I am an uncardable person in this system).
Owing to the abuses of Native Americans and the long haul attempt of the US government to abolish tribes and cultures, and the partial success of Native Americans in resisting that, many governmentally recognized American tribes with reservations have a process of "enrolling" members on an ongoing basis, and only those enrolled members are entitled to the various benefits of "Native Americans" under various Federal statutes and to whatever benefits, large or small, tribal membership in that particular tribe can provide. Those who cannot be carded, though they be kin to the carded, are entirely outside the formal tribal system of that tribe and benefits and might as well come from Mars.
Owing to the insistence of the US government for its own profoundly racist and slow-genocidal reasons, tribes were forced at various points to create 'rolls', membership lists, on which all persons the tribe agreed as of a certain date were members were enrolled, although sometimes it was the Indian Census of year X rather than a roll per se, Subsequent enrollment decisions demanded that the new enrollee be at least a provable quarter descendant in 'blood quantum' from somebody actually listed on those rolls or censuses, rather than kicking over as to the new enrollee when the new enrollee was enrolled
(Example Grandfather is an original enrollee and counted as full blood, his son is half blood unless Grandma was also originally enrolled on the same roll, his grandchildren are a quarter, depending on what their mother brought to the calculation, and anyone after that is below the minimum and not enrollable at all. Dad, in this example, when enrolled, did not reset the calculation percentage at 100%))
. This test of tribal membership was, for good reason, not one used by most tribes before the requirement of enrollment was made by the US government, since 'tribes' in many cases were bands of closely related people, and knew a measure of exogamy was a very good idea long before genetics agreed. Some tribes also insisted on reservation residence or other substantial tribal cultural tie that could demonstrate that the person considered for enrollment was a cultural member of the tribe and not just a genetic one, excluding anyone coming back for the money who knew nothing whatever about Indians otherwise and didn't choose to, but eager to be enrolled, especially after the first casino opened, for the Federal financial and other benefits enrollment conferred (Lotta those, and I am not talking about them either. This is about the process itself). One of these was registration of new babies born to tribal enrolled persons but born off the reservation, within a finite time.
Since that system was set up, and despite its apparent logic to certain European minds, tribes and individuals have been forced into what is almost a form of rolling human tragedy making these decisions about enrollment, that has gone on for decades and in the greatest good faith by the doers, owing to the application of technical bureaucratic rules to the core citizenship status of human beings, who were either 'in' or 'out' of what was often the only culture they also ever knew or wanted to know. The bureaucratic rules determined the outcome, which rules among other things determined 'genuine connection,' in the nature of cultural continuity, and sheer location and timing of residence of a child in a stated location- if the claim to membership in one tribe recently in scandal over this was grandmother, and new evidence suggested she was off the reservation for too long in 1924, her descendants, all of them long enrolled before, could be found belatedly not entitled to membership and kicked out. If the papers of Sam's new baby born in another State because he was a grad student at Harvard, didn't come in on time, baby was out.
I am not here arguing the right of tribes to exercise sovereignty as they choose or the evil of the US government in mandating this system, that is for another day, but I do point out that this is a bureaucratic system which runs in ways that seem to be present in the 'birthright' and 'genuine connection' citizenship proposal of Prof. Shuck in the NYT, and that this system has not, in its Tribal Enrollment produced reliability and finality for those involved in it but pain and separation problems in all the years it has been in force. Shuck's 'genuine connection' determination after ten years of baby life has all of these same general problems, exacerbated by the national politics of xenophobia and race and the peculiarity that it applies strictly to babies and children, the least likely to understand anything bureaucratic.
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For me, we've been there, or some of us have, we've done that, and we need to learn why we should not do that again. For others more fortunate, I believe it is clear that any system that conditions a citizenship determination on years and years of probation, with the citizenship denied for reasons determined by bureaucrats, is simply unjust and unworkable.
I concede I am for full birthright recognition because no person born here should ever suddenly discover that owing to XYZ, suddenly they are not a citizen at all and are thrust into a limbo which may be impossible to unscramble. No amount of immigration grumpiness should do that to any child or person.