[ad_1]
Jonathan Swan, Axios: "In immigration, some jurists think that you can get rid of citizenship without changing the Constitution."
President Trump: "With an executive order."
Swan: "Exactly."
Asset: "Right."
Swan: "Have you thought about that?"
Asset: "Yes."
Swan: "Tell me more."
Asset: "It has always been said that a constitutional amendment is needed. Guess what? You do not. … You can certainly do it with an act of Congress. But now, they say that I can do it simply with a decree. Now, how ridiculous it is: we are the only country in the world where a person comes in, has a baby and the baby is basically a citizen of the United States for 85 years, with all these benefits. "
– Trump interview with AxiosOctober 30, 2018
"Many gang members and very bad people are part of the Caravan heading to our southern border. Please go back, you will not be admitted to the United States unless you go through the legal process. It's an invasion of our country and our military are waiting for you! "
– Trump tweetOctober 29, 2018
Laura Ingraham, Fox News: "What will the military be able to do? Obama and Bush both sent the National Guard. This had no effect. "
Asset: "But it's not me. That's it – I send the army. It is the army. And they stand there and one thing we will have. … when they are captured, we do not let them out. "
– Exchange on "The Ingraham Angle" on Fox NewsOctober 29, 2018
Trump talks about a great game about immigration, but there is less than there is to the eye.
The president says that he can end citizenship in the United States simply by signing a decree. This is an extraordinary statement – never before the courts and contradicted by the Department of Justice.
"You can not end citizenship through an executive order," said Paul D. Ryan (R-Wis.), Speaker of the House. m said hours after the announcement of Trump.
Trump also said that active military troops would "wait" at the border for the Central American migrant caravan in case anyone tried to cross the US border. he told Fox News that these migrants could be "captured" by the military.
But the 5,200 troops deployed at the border will not be apprehended by migrants. The defense ministry said the troops would operate under legal constraints and provide a range of support services for US customs and border protection, the agency that patrols the Rio Grande. and proceeds to apprehensions at the borders.
We spend so much time checking Trump's claims about immigration, it's not really a surprise to see this macho talk a week away from the mid-term elections. Let's dig in it.
Facts
The executive order promised by Trump would be challenged in court and probably outlawed until the case is resolved. The authority of the president to send troops to the border is not in question, although he is wrong to suggest that active service military forces would detain or capture people attempting to cross into the United States.
As to the president's assertion that only the United States offers citizenship of the right of origin, that is totally false, as we have already pointed out. Thirty-three countries have similar laws, including Canada and Mexico.
Neither the White House nor the Department of Defense answered our questions.
Citizenship
The 14th Amendment was adopted in 1868, rejecting the decision of the Supreme Court rendered by 7 votes to 2 in the case Dred Scott c. Sandford, a 1857 decision that denied citizenship to people of African descent born in the United States.
The first sentence of the amendment seems pretty clear, but its meaning is questionable because someone has stuck a vague article in the middle.
"All persons born or naturalized in the United States, and subject to the jurisdiction of the latterare citizens of the United States and the state in which they reside, "says the amendment.
The Supreme Court ruled in 1898 that this right to citizenship covered Wong Kim Ark, born in San Francisco of Chinese nationals lawfully residing in the United States.
The court did not specify whether the same right applied to children of illegal immigrant immigrants. (It was not a thing in 1898.) However, the judges pointed out that the 14th amendment was couched in a broad sense and listed only a few exceptions to copyright citizenship, such as the children of business ministers foreigners or hostile armies in the United States.
"The fourteenth amendment confirms the ancient and fundamental rule of birth citizenship in the territory, in the allegiance and under the protection of the country," Justice Horace Gray wrote to the court. This right covers "all children here born of resident aliens, with exceptions or qualifications (as old as the rule itself) of children of foreign rulers or their ministers, or born on foreign public vessels, or enemies within and during hostile occupation part of our territory, and with the sole exception of the children of members of the Indian tribes, who are directly loyal to their tribes.
"The amendment, in clear terms and with obvious intent, includes children born in the United States of America of any other person, of any race or color, domiciled in the United States."
Then, in the case of 1982 Plyler v. Doe, the court said that Texas could not exclude the children of undocumented immigrants from public schools. The Supreme Court added that there was "no plausible distinction with respect to the" jurisdiction "of the 14th Amendment: foreign residents whose entry into the United States was legal and resident aliens whose entry was illegal . "
In 1995, the Office of the Legal Counsel of the Department of Justice rejected the idea that Congress could restrict citizenship by law (not to mention a decree). The citizenship of the birthright is enshrined in the Constitution. The only way to change it is to amend it, so Deputy Attorney General Walter Dellinger wrote and testified before Congress:
"The expression" within its jurisdiction "was meant to reflect the existing common-law exception for distinct sets of persons considered to be subject to a foreign sovereign and to the protection of the law. US legislation, mainly children born in the United States of foreign diplomats, the only additional exception of children of children of Indian tribesmen.Except these extremely limited exceptions, there is no doubt that Children born in the United States to foreigners are subject to the full jurisdiction of the United States.And, as has been recognized regularly by the courts and attorneys general for more than a century, including the Supreme Court in the United States. United States v. Wong Kim Ark case, there is no doubt that they possess constitutional citizenship under the Fourteenth Amendment. "
He is not alone. "The fourteenth amendment guarantees the citizenship of the first birthright," wrote in a 2006 article the law review James C. Ho, which Trump later named at the Fifth Circuit Court of Appeals. "This birthright is no less protected for the children of undocumented people than for the descendants of Mayflower's passengers."
"Opponents of illegal immigration can not claim to defend the rule of law and, at the same time, propose policies contrary to our Constitution," Ho wrote in a 2011 Wall Street Journal editorial.
However, the Supreme Court could "revisit its own precedent in Wong Kim Ark and state that the children of non-citizens are not citizens of birth, "wrote Martha S. Jones, a historian at Johns Hopkins University and author of" Birth Rights: A History of Race and Rights in Canada. " America antébellum ". on Twitter.
"It would be a departure from precedent, but it is possible," she said. Otherwise, the court could distinguish between the children of legal residents and undocumented immigrants in order to resolve the case in favor of Trump.
"My view is that this type of total or categorical exclusion is contrary to the spirit of the 14th Amendment, which aimed to broaden and pave the way for citizenship, especially for those who might otherwise be refused because of racism, "added Jones. "The case being old slaves."
Mark Krikorian, executive director of the Center for Immigration Studies, which advocates tighter immigration policies, said he suspected the Supreme Court of Trump's annulment of the decree. Even that would be a good result, because it would settle the debate once and for all, he said.
"I'm just saying it's ambiguous. It's not easy, "said Krikorian. "These problems did not exist literally when this amendment was drafted and approved. The question is what does the exception mean?
Krikorian said that one of his main concerns was the "birth tourism" or the practice of some parents to travel to the United States to give birth to their children, get US citizenship, and then bring up those children in their country of origin.
"These kids do not grow up like Americans," he said. "There is no one for that. While the kid of an illegal alien, who goes to school every day, says the oath of allegiance, this kid is an American. It's a pretty nice situation. "
(There is no official estimate for birth tourism cases.) In 2012, the Centers for Disease Control and Prevention provided for approximately 8,000 women, or less than 1% of annual births in the United States. United, provided an overseas address when drafting the birth certificate documents, which in 2015 produced an approximate estimate of 36,000 babies born to foreign nationals per year.)
The Migration Policy Institute states that "birth citizenship is not the engine of illegal immigration" and that "most legal experts are convinced that the repeal would require a constitutional amendment".
"In collaboration with researchers from Pennsylvania State University, the Migration Policy Institute (MPI) has discovered that ending birth status for American babies with two unauthorized immigrant parents would increase the existing unauthorized population by 4.7. millions of people by 2050, "said Michael Fix, a former president of the institute, wrote in 2015.
"The 14th amendment provides for birthright citizenship," said Ted Cruz (R-Tex.) In an interview for the year 2011, when he was appearing for the first time in the Senate. "I have examined the legal arguments against it and I am going to tell you, as a litigator in the Supreme Court, that these arguments are not very good. Even if a person may not like the politics of citizenship, it is in the United States Constitution. And I do not like the federal judges putting aside the Constitution because their political preferences are different. And so, my point of view: I think it is a mistake for the Conservatives to try to fight what the Constitution says about citizenship. I think we'd better focus on securing the border. "(Cruz had flip-flopped in 2015 and Trump had taken the credit on Twitter..)
Military at the border
The Trump administration will deploy 5,200 troops on active service to the southern border by the end of the week, as a caravan of nearly 3,500 Central American migrants slowly making their way to Mexico poses a threat, according to Trump and others responsible for the administration.
This is in addition to the 2,000 national guards already at the border. (And another caravan of 3,000 migrants follows the first caravan.)
As an indication, the 7,200 troops deployed at the border are about equal to the US military presence in Iraq (5,200 men) and Syria (2,000 men) in August.
When Fox News presenter Laura Ingraham asked Trump what the problem was, given that Presidents George W. Bush and Barack Obama had both sent the National Guard to the border and that it had "no effect, "Trump said that things would be different now that he was calling himself. . "When they are captured, we do not let them out," he said.
This is misleading. The Posse Comitatus Act of 1878 limits what the US military can do to enforce national policies, including immigration laws.
"The armed forces do not appear to have a direct legislative mandate to protect or patrol the border, nor to enforce immigration regulations," according to a report from the April 2018 non-partisan research service. Congress.
However, the armed forces can provide indirect support, the CRS report added. They can "share information gathered during normal military operations; loan of equipment and facilities; provide expert advice and training; and maintain and use equipment ", for example.
"For federal law enforcement agencies, military personnel may be available to maintain and use equipment in connection with counter-terrorism operations or the enforcement of laws against terrorism. drug, immigration laws and customs requirements, "revealed the CRS. "Members are authorized under this authority to maintain and use equipment for specific purposes only, including aerial reconnaissance and the detection, monitoring and reporting of air and sea traffic, as well as surface outside the United States or within 25 miles of US borders. , if detected for the first time outside the border. "
What the armed forces can not do is stop or search migrants, according to a federal law that prohibits "the direct participation of a member of the army, navy, air force or corps search, seizure, arrest or any other similar operation. " activity unless the law otherwise entitles that person to participate in that activity. "
Sarah Pierce, an analyst at the Migration Policy Institute, said that she was "very certain that they will not be able to arrest an immigrant or proceed with forced execution".
But she added that "the courts have ruled that it is acceptable for the Navy to carry prisoners" in some cases, so it is possible that the armed forces "transport immigrants to detention centers or children to [shelters]once they have been apprehended. "
General Terrence J. O. Shaughnessy of the Air Force, the head of the US Northern Command, said at a press briefing on October 29 that troops sent to the border are armed and that "everything that we do is in accordance with Posse Comitatus. "
O'Shaughnessy said the list of military resources sent to the border includes "three highly experienced and capable combat engineering battalions, with expertise in the construction of temporary vehicle gates, fences"; "Aeronautical, technical, medical and logistical resources"; Black Hawk helicopters with night vision capabilities that can carry CBP personnel; "Military Police Units"; "Three C-130s and one C-17s", which are military transport aircraft; and "deployable medical units".
The Ministry of Defense has not indicated whether any of these troops would deal directly with migrants (although this does not appear to be the case in O'Shaughnessy's comments) nor how these costs would be covered.
The Pinocchio test
It is incredible to imagine that the President can erase a reading of the Constitution that is more than a century old, of itself, with a pencil stroke. That's not the way the government works.
The official position of the Ministry of Justice of 1995 indicates that Trump is twice wrong: you can not erase citizenship through an act of Congress or an executive order. The decisions of the Supreme Court in Wong Kim Ark and Plyler strongly suggest that the 14th Amendment's birth and citizenship guarantee applies to the children of undocumented immigrants.
Trump made the Supreme Court more conservative, but conservative judges tend to interpret the Constitution as it was heard at the time of writing. So good luck with that.
The president also warned that migrants could be "captured" by the army. This is not how the government works. The 5,200 troops deployed at the border can provide a range of support services, but US law specifically prohibits them from participating in "a search, seizure, arrest or other similar activity".
Trump's breathtaking comments are sure to spark debate in some quarters and sow fear in others, but they have only a tenuous connection to the facts and deserve Three Pinocchios.
Three Pinocchios
(Washington Post Staff / Washington, D.C.)
Send us facts to check by filling out this form
Sign up for The Fact Checker weekly newsletter
The fact checker is a verified Signatory to the Code of Principles of the International Fact-Finding Network
[ad_2]
Source link
