Tuesday, October 30, 2018

The Proposed Executive Order Attacking Babies

Gerard N. Magliocca

In an interview reported in various media outlets, the President said that he plans to sign an unconstitutional executive order removing birthright citizenship from children born henceforth to noncitizen of one sort or another. The text of Section One of the Fourteenth Amendment, as well as the background law, the debates in Congress, and the subsequent practice are clear on this point. No doubt the White House can produce at least three stooges to say that the executive order is lawful and then claim that legal experts are "divided" on this issue.  It's a lie.

I have made it a practice never to sign or participate in briefs for constitutional cases. To my mind, the roles of scholar and advocate should be separate. In this case, though, I will make an exception. When the order is signed and the lawsuit is filed (by whomever), call me up and I'll help.


I'm reminded of a Christmas Card from years ago that featured on the cover page all the letters of the alphabet, expect, as revealed on an inside page, there was "No L." There are two Ls in "lawful" that Trumpste legal stooges might use to describe such an Executive Order by Trump. Let's get the (first) L out of here for accuracy. Now let's hear from the stooges.

So much for 'enforcing the law as plainly written!'

Btw-this comparison to illegal immigrants to 'invaders' and 'invading armies' is exactly the kind of extreme, hyperbolic language that motivated this recent murderer in Pittsburgh (after all, if we're really being invaded by an invading army then taking up arms to stop it is somewhat 'reasonable').

I'm actually a proponent of limiting legal and illegal immigration (I voted for Pat Buchanan for President in large part because of this issue way before it became 'mainstream.'). But illegal immigrants are in no coherent sense an 'invading army.' They are not coordinated, they are not armed, they are not coming with hostile intent. They are a bunch of differentiated individuals and families each fleeing to our country because of various systemic failures in their societies which they experience and react to in very personal ways. They are unfortunates, fleeing general disasters in their areas. We may not be responsible to take them in, doing so may likely be bad for us, but to equate them to an 'invading army' is not only silly, innaccurate hyperbole but, as we've seen, inflammable language.

But we live in a time when one party has embraced inflammable language as a norm and/or end in itself and another is starting to tinker with the same. These are troubling times.

I'm sure Randy Barnett is ready with an originalist argument.

This is seen as a kooky argument even on the right. (See the Volokh Conspiracy blog for some nice critiques of the argument, which is basically the province of John Eastman, who is seen as a kook even by conservative legal scholars. Eastman was even pushing that the Court decide Hamdi v. Rumsfeld on this ground a decade and a half ago.)

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