THE LAW REGARDING BIRTHRIGHT CITIZENSHIP
Administrative agencies of the American Federal Government since the passage of the 14th Amendment, have excluded foreigners and their children by race, creed, and color—including the total abolition of Chinese (The Chinese Exclusion Act of 1882) and Japanese (Asian Exclusion Act of 1924) from becoming United States citizens. These examples bring great skepticism to the current debate raging in America, as today, we find the opposite interpretations of these same Amendments and Supreme Court decisions from the 1860s and 1880s, respectively, to mean that open borders are a human right for anyone, from anywhere, with any agenda--even ideologies hostile or dangerous to America and its principles.
Open Border advocates claim if a person can cross the U.S. border—legally or illegally--and drop their spawn, they add that child to the American taxpayer’s burden forever. No questions allowed by Progressive fanatics of the Administrative State or Mainstream Media—both of which once held the opposing view.
In fact, the same political party which decried this “Birthright Citizenship” as ‘an outrage’ as recently as 1990s (Democrat Senate Majority Leader, Harry Reid) when it was not working in their party's favor, now holds “Birthright Citizenship” to be a sacrosanct human right. Immigrants coming then were largely seeking opportunity not a handout—and therefore more likely to vote Republican—but the incredibly generous giveaways of today attract a very different group of immigrants—more likely to be Democrats—thus the change in that party’s stance on the issue.
This madness prompted me to study the issue in depth and try to figure out how such an inane policy could possibly exist. It is admittedly an emotional, politically-driven debate, whose players keep switching sides, depending on the politics of the moment—and all of their interpretations appear to be wrong.
SO WHAT ARE THE FACTS?
The facts reveal a more sensible truth.
FACT—It is true that the Fourteenth Amendment to the U.S. Constitution granted the right for those born in the United States to become citizens, as a means of forcing the instatement of citizenship for black Americans born on American soil who were victims of enslavement. This amendment actually fulfilled the Founders’ promise of equal treatment under law for Americans.
FACT— That same Amendment excluded Native Americans and women indicating considerable limitations were intended. Supreme Court Justice Ruth Bader Ginsburg recently acknowledged this uncomfortable truth in an interview—during which she forgot what the Fourteenth Amendment was about but was reminded. A member of the audience gave her a copy of the Constitution she swore to uphold—but apparently, rarely uses. (https://www.youtube.com/watch?v=xKJ8j-FokCI).
FACT—Just two months before the adoption of the 14th Amendment in 1866, Congress also passed the Civil Rights Act to address the same issues and declared “all persons born in the United States and not subject to any foreign powers, excluding Indians not taxed” to be citizens. If Congress did not intend for the original owners of America’s vast landscape to be citizens, granting that to all others, seems a bit of a stretch. Further, the phrase ‘subject to foreign powers’ clearly excludes any who come to the United States illegally as they are still subject to the jurisdiction of the nations from which they came or were born.
SO WHERE IS THE PROBLEM?
The hard hike uphill to the truth gets even trickier, as the last seminal decision on this issue harkens back to Supreme Court decision Wong Kim Ark from 1898, when the court ruled that since Wong Kim Ark was born to parents who were in America legally at his time of birth, he was, in fact, a U.S. citizen, even though the laws later passed by Congress denying his entire race citizenship, were in force upon his return to the United States from China.
The “Kim” ruling of 1898 decided that:
‘Upholding the concept of jus soli (citizenship based on place of birth), the Court held that the Citizenship Clause needed to be interpreted in light of English common law, which had included as subjects virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory.’ The ruling further required birth citizens to have “a permanent domicile and residence in the United States.”
Even the most elastic interpretation of this ruling would indicate that people illegally invading America to occupy even a square meter of the country’s territory would qualify for exclusion from ever holding legal status or their children having any birthright to citizenship. The further requirement to have “residence”and a "domicile" in the United States—meaning that the parents must hold lawful status to reside in the nation and have a place to live when birthing children—is inescapable. Simply sneaking across the border or setting one foot on U.S. soil to make their offspring a citizen does not qualify. This should end the question for all times—but that is not likely, as immigration is the only life raft keeping the ‘Progressive’ Democrat Party afloat in America today.
WHERE ARE WE NOW?
President Trump, given the seriousness of this issue and the ineptness of Congress to act on it, has promised an executive action—which will be immediately challenged by his opposition in the life raft (and the mainstream media that does most of its paddling). The President therefore needs to prepare for the inevitable court battle to prevent any of the invading ‘caravans’ from ever becoming residents or citizens by focusing on their stated intent to wilfully violate U.S. borders. That should determine them to be “enemy forces engaged in hostile occupation of the country’s territory.”
This 7,000 strong force of mostly young men between the ages of 18 and 24 have already broken through/invaded/violated the borders of either one or two nations, depending on whether they are Honduran or Guatemalan—and how Bangladeshis and Syrians came to be among them is yet to be determined—but they are, indeed, in the so-called ‘caravan’ as well.
Violently breaking through international borders, tearing down barricades and openly and notoriously violating the laws of Nations, while admittedly on the way to do so in yet a third or fourth nation to literally steal benefits, qualifies as ‘hostile’ and when financed by America’s enemies, it is rightly described as a ‘force’ with ill intent.
It was also revealed this week that molotov cocktails (gasoline bombs) are being produced to be used at Mexico’s Southern border by the next group of invaders to force entry, and weapons are being gathered just south of our own border by forces hostile to America, for a confrontation at the destination border—ours.
SHOW ME THE MONEY
The funding for this 7,000 strong force, therefore, is quite relevant to the President’s argument as well, which is perhaps why no Progressive media has questioned how 7,000 people are fed, watered, toileted, and feted each day, to survive a 2,500 mile march. Now we know.
The money is coming from two Marxist dictators ‘hostile’ to the United States. The President of Honduras officially advised U.S. Vice-President, Mike Pence this week that his government can prove funding is coming from the Marxist regimes of Nicolás Maduro (Venezuela) and Miguel Díaz-Canel (Cuba) to finance this mercenary force marching on the United States.
This is actually a brilliant move in my opinion, though I abhor the use of poor people as pawns in a dangerous game of global politics by foreign dictators. For the cost of less than one bunker-busting bomb, however, these two dictators will cost the American taxpayers 1) hatred from the world community, and 2) they will impose a financial burden on the American taxpayers for a century.
This is brilliant. They are undermining their enemy for a pittance. If their cause was for actual freedom rather than Marxist oppression, I’d be their greatest advocate—but they are not for that. They are simply using poor, oppressed people to further their Marxist ideology and bankrupt America—and their comrades on America’s Left appear to be in goose-step with them.
WHAT IS THE REAL COST OF ILLEGAL IMMIGRATION?
In the President's argument should also be mention of the cost. Hispanic columnist, Sara Gonzales, recently reported on the pricetag of illegal immigration alone—which does not include those who enter the United States legally. The numbers are staggering:
“The Federation for American Immigration Reform — or FAIR — released a comprehensive report Wednesday on the rising cost of illegal immigration. Here are the numbers you should know:
Total government expenditures on illegal immigration: $134.9 billion per year
Total federal costs: $45.9 billion
● Education costs: $1.7 billion
● Medical costs: $17.1 billion
● Justice system costs: $13.1 billion
● Welfare programs: $5.9 billion
● General expenditures: $8.1 billion
Total state and local costs: $89 billion
● Education costs: $44.4 billion
● Medical costs: $12.2 billion
● Justice system costs: $10.9 billion
● Welfare costs: $2.9 billion
● General expenditures: $18.6
Though many immigration advocates believe these expenditures are offset by the taxes paid into the system by illegal immigrants, FAIR’s report shows that even when considering total taxes paid by illegal immigrants at both federal and local levels, the deficit is staggering, with the costs outweighing the taxes paid into the system by a 7-to-1 ratio.”
If someone successfully breaks into my home, that does not automatically make them a part of my family. If someone successfully breaks into my nation, that does not make them—or their child—my fellow citizen, and we should not have to spend this money to support them.
Both are criminals—for whom I have great sympathy, as my writings attest—but I do not defend those who intentionally violate the laws of nations—or the sanctity of my home, and in fact, I very much equate the two.
WHAT DOES THE PRESIDENT NEED TO DO?
By declaring this invasion (or any who violate our borders) as ‘hostile', he is covered. He should also cite and enforce the Supreme Court decision in “Wong Kim Ark” that parents must have residency and a domicile in the United States before their child is born to qualify for Birthright Citizenship.
If the invaders cannot show residency papers or legal domicile, then foreign eggs and sperm blended have no right to anything in the United States, only their own nations are responsible for those zygote(s) and children.
This has no affect on the rights of legal immigrants. They can apply at a port of entry and if accepted, their children will automatically become citizens when born on U.S. soil, but if not, the President can stop them, arrest them, imprison them, and send them back, with prejudice—meaning they can never return again or be considered for entry into the United States—and neither can any nappy-wearers they disgorge during their stay on President Trump’s soil. Period.
He has every right to do what he is doing, under law decided in the 1800s.
Congress needs to address all of these issues and update America's policies by law, ending any reasons for coming to America other than to benefit our nation. Further, are we to allow any and all to invade our nation, just because they have allowed their own leaders to impose less successful policies and stultifying Middle Age ideologies on them where they were born?
In answer, we should not. People need to sort out their own governments, not just flee them seeking ‘asylum’ in those that used human freedom and its inevitable results to their benefit.
Get rid of your dictators, and put these same ideas to work in your nations. The miracle can happen there, but for God’s sake, do not come to ours and try to change us. We’re fine. It’s you who have done this to yourselves, or allowed it. We revolted against it and used these simple ideas to create the greatest nation on earth. Why don’t you?
But as the law stands today, the President has every right to stop it if he words the order with the correct terminology.
Howell W. Woltz
Author of "Restoring America: by returning to its Constitution." Watch for Howell's new novel "The Lawyers Guild" which will be available in late November.
Born in North Carolina and educated at the University of Virginia, Wake Forest University and Caledonian University in Scotland, Howell now lives in Warsaw, Poland with his wife, Dr. Magdalena Iwaniec-Woltz. Howell is the European Correspondent for The Richardson Post and Chairman of The International Centre for Justice.