Stephen Miller is nothing if not tenacious in his hatred of immigrants, his own ancestry notwithstanding. After the Supreme Court ruled against Trump’s birthright citizenship Executive Order, and given the vast array of grandiose construction projects going poorly, plus that darn war that won’t go away no matter how many times Trump claims he won, and the nagging Democrat-invented “affordability” thingie, you might think that he was too busy to continue pushing the envelope on such a nonsensical cause as ending the Fourteenth Amendment’s birthright citizenship that was already decided and doomed to fail.
Miller, however, won’t take the Constitution for an answer, and so Trump signed what Miller put before him.
Ilya Somin explains why, to the extent these EOs aren’t duplicative to existing law and thus redundant, the issuance of more Executive Orders doesn’t change anything about their constitutionality
Today’s order denies birthright citizenship to four categories of children:
- Children of “alien enemies,” defined as those where at least one of two non-citizen parents is a “designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism).”
- Children born to at least one non-citizen parent who is a “foreign government employee” or employed by an “international organization that possess[es] international-organization immunity.”
- Children where “either parent” has engaged in “birth tourist” transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).
- Children “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.” As far as I can tell (I welcome correction by experts), this only applies to children born in American Samoa, the one populated overseas US territory to whose residents Congress has not conferred citizenship by statute [see update below].
With one exception (children of foreign-government employees who have diplomatic immunity), all of these children are entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment, as (rightly) interpreted by the Supreme Court in Trump v. Barbara.
While an Executive Order is not a law, it is a binding directive on the Executive branch, including its many armed and masked minions, who must accept it as the president’s command and act upon it until a court rules otherwise. While these EOs (there were two in total) are subject to the Supreme Court’s Barbara ruling, the administration contends that nothing in there conflicts with the decision, and so the wheels of government will continue to grind.
[White House staff secretary Will] Scharf said among the actions being considered would be denying visas to visitors they suspect are coming to the country solely for delivering a child in the United States.
“There’s absolutely nothing in here that runs afoul of any of the Supreme Court’s opinions on the subject,” Mr. Scharf said.
The New York Times cites a source saying that there will be little impact from these EO.
A Department of Homeland Security official, who was granted anonymity because they weren’t authorized to speak about the executive orders, threw cold water on the birth tourism order. There is nothing new in it from an enforcement perspective, the official said, because it simply restates existing law.
This seems both dubious and naive. It’s hardly a stretch to imagine pregnant women with valid visas being refused entry, ICE agents storming hospital maternity wards and seizing newborns (who, without counsel, will have the opportunity to contest their removal at a hearing before an Immigration Judge) or staking out schools where the children of imagined drug gang members attend.
The means by which these EOs will be effectuated is unclear, but when the command is only directed toward outcome, the means are left to the discretion of those armed and masked men. Some might say that their discretion leaves much to be desired.
But won’t this address a pressing and critical problem?
When a reporter noted that the president’s own solicitor general had been unable to tell the Supreme Court precisely how many people were benefiting from birthright citizenship, Mr. Trump replied, “I’ll tell you right now, hundreds of thousands, OK? Hundreds of thousands.”
(Pennsylvania State University scholars released a study about the time of the Supreme Court ruling that found that fewer than 0.3 percent of all births in the United States were to tourists, in any year.)
Nonetheless, there are some people who will believe Trump’s baseless numbers, and others who just don’t care whether unlawful and unconstitutional actions are perpetrated in the name of these Executive Orders until such time as they’re challenged and the case winds its way through the system.