Amnesty, Obama, and the Constitution

by Dr. Gerard Emershaw

Mitt Romney has recently stated his suspicion that President Obama will soon take executive action and order amnesty for illegal immigrants. Governor Romney is not the only one with this suspicion. Republican Senators John McCain, Marco Rubio, and Lindsey Graham have recently warned President Obama not to take executive action by granting amnesty, citing border safety and terrorist concerns.

The Constitution grants authority to Congress when it comes to naturalization and immigration. Article I, Section 8 grants Congress the power “[t]o establish a uniform rule of naturalization.” There is nothing in Article II of the Constitution which grants the President any power when it comes to creating immigration policy. It is merely the duty of the executive to enforce laws that are constitutionally enacted by Congress. The President “shall take care that the laws be faithfully executed.”

The most recent immigration act which included any kind of amnesty for illegal aliens was the Immigration Reform and Control Act of 1986. This law was passed by the Senate on September 19, 1985, passed by the House of Representatives on October 9, 1986, and signed into law by President Ronald Reagan on November 6, 1986. This law legalized illegal immigrants who entered the United States before January 1, 1982, could prove they were not guilty of any crimes, and were willing to pay a fine and any back taxes.

The text of the Constitution and this legislative precedent demonstrate beyond any doubt that it would be blatantly unconstitutional for President Obama to use an Executive Order or any other executive action to unilaterally grant amnesty to illegal aliens.

(For a much more detailed discussion of Constitution and the enumerated powers of the federal government on issues such as immigration, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)

Vice President Biden’s Dubious Logic on Illegal Immigration

by Gerard Emershaw

Vice President Joe Biden—a.k.a. the Gaffemaster General—is at it again. This past week while addressing the U.S. Hispanic Chamber of Commerce, Vice President Biden said: “You know, eleven million people live in the shadows. I believe they're already American citizens. These people are just waiting, waiting for a chance to contribute fully. And by that standard, eleven million undocumented aliens are already Americans, in my view.”

Without even addressing the complexities of the illegal immigration issue, it is instructive to merely consider the structure of the Vice President’s argument here. He is stating that those who have broken the law and entered the United States illegally are in fact the same as native born and naturalized citizens. He is also saying that illegal aliens are more legitimate than resident aliens who are in the country on work visas, student visas, etc. Such individuals are not citizens, and Vice President Biden does not say that they are.

According to the Vice President, one of the reasons that illegal aliens should be considered citizens is that it took “a lot of courage” for them to illegally enter the country. This makes his argument all the more astounding. If one considers parallel cases, the true shocking nature of Vice President Biden’s argument becomes even more clear. An illegal alien, who has violated federal law by entering the United States without following the proper procedures, is already an American citizen. By this logic, a car thief, who has violated criminal law by stealing another person’s car, is already the owner of that car. By his logic, a burglar who has broken into the house of another person is already the owner of that house. In each of these cases, it also takes “a lot of courage.” Grand theft auto and burglary are certainly not activities for the faint of heart.

Another logical consideration involves the differences between illegal aliens and other types of foreign citizens. As touched upon earlier, the only relevant diffference between an illegal immigrant and a legal immigrant is that the illegal immigrant has broken the law to enter the United States. This should be considered a very relevant difference. Yet, for the Vice President, the criminality somehow makes the illegal immigrant into an American citizen. So, should resident aliens with green cards or visas commit some sort of violation of the law in order to make themselves into citizens in Mr. Biden’s eyes?

Next, consider the difference between illegal aliens and those foreign citizens who are not able to enter the United States legally at this time for whatever the reason. Those who wait patiently, hoping for an opportunity to come to the United States legally in the near future are penalized by the Vice President because they lack the “courage” to violate the law and sneak into the country. So, obeying just and constitutional laws is no longer a virtue but instead a sign of cowardice? This is the kind of logic that is just not logical.

The strangest thing about Democrats like Vice President Biden and RINO fellow travelers on the amnesty issue is that such individuals tend to oppose government policies which would actually allow for greatly enlarged levels of legal immigration. In fact, the very economic policies which such individuals oppose would make amnesty not only possible but perhaps even economically necessary. The reason that nearly unlimited immigration into the United States—limited only by national security or health considerations—is not possible is because Democrat/RINO economic policies keep the economic pie from growing sufficiently to allow it. There are simply not enough jobs for these immigrants. While immigration does tend to make the economic pie grow in the long run, progressive economic policies retard such growth. If the federal government would abolish the Federal Reserve, cut government spending, cut taxes, gut the welfare state, and cut burdensome business regulations, then the country’s economic pie would grow exponentially. Eventually there might even be a shortage of workers. There will literally be jobs that Americans will not do simply because the vast majority of Americans able to work will have jobs which they prefer. Businesses will need new immigrant workers not because they wish to pay illegal aliens slave wages since these immigrants are “in the shadows” and lack any true bargaining power but because there will simply be a labor shortage due to a strong economy.

Instead, those like the Vice President wish to bring in new people who are likely to become dependent upon the government. They want more Nanny State supporters and new potential slaves of the state. The country can either sustain a bloated Nanny State or relatively open borders. It cannot sustain both. Progressive Democrats and RINOs need to make up their minds on which they prefer.

Kick Piers Off the Pier?

CNN host Piers Morgan is a foppish pseudo-intellectual twit. There is no doubt about that. Morgan is the host of CNN’s highest rated show “Piers Morgan Tonight,” having replaced CNN mainstay Larry King in January of 2011. Morgan was a writer and editor with several British tabloids including The Sun, The News of the World, and Daily Mirror and has also been a judge on “Britain’s Got Talent” and “America’s Got Talent,” and the winner of Trump’s “Celebrity Apprentice” in 2008.

Despite being the host of CNN’s highest rated show, not that many Americans followed him very closely because ratings on a television network are a relative thing. Morgan’s show pulls in less than 1 million viewers a night on the average and finishes a distant third in the Nielsen ratings well behind Sean Hannity’s show on Fox News and Rachel Maddow’s show on MSNBC.

On December 21, a petition appeared on the White House’s website demanding that Piers Morgan be deported.

British Citizen and CNN television host Piers Morgan is engaged in a hostile attack against the U.S. Constitution by targeting the Second Amendment. We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens.

As of December 24, 2012, more than 48,000 people had signed this document. The policy of the White House is that if a petition receives 25,000 signatures within 30 days, the White House is obliged to respond.

Why do Americans want the federal government to give this tabloid journalist fop the heave ho? The furor began in the wake of comments that Morgan has made on his show and on Twitter following the tragic school shootings in Newtown, Connecticut on December 14. Morgan has consistently attacked the Second Amendment on his show, culminating in an embarrassing performance on December 19, 2012 when unable to engage in a rational debate with gun rights advocate Larry Pratt, executive director of Gun Owners of America, Morgan resorted to childish name calling. During this broadcast, Morgan called Pratt “an unbelievably stupid man,” an “idiot,” and “a dangerous man espousing dangerous nonsense.”  

Morgan continued his gun control crusade on Twitter, tweeting several suggestions for new gun control regulations that he would like to see enacted. These suggestions include a ban on “assault weapons,” more stringent background checks, a ban on guns for any felons or people with a “mental health history,” and a ban on guns for any person less than 25 years of age. In addition, Morgan suggested “a huge incentivized gun amnesty,” noting that he does not believe anyone needs more than one gun. 

The idea that Piers Morgan should be deported has been energetically expressed by Wall Street Journal writer James Taranto and by popular talk show host Alex Jones. Morgan had argued that he was protected by the First Amendment, but Taranto replied that Morgan’s opinion was protected but his presence in the United States was not, citing Kleindienst v. Mandel (1972) – a case involving the denial of an immigration visa by the Attorney General to a Belgian Marxist journalist – in support of his opinion. 

Jones argues that Morgan should be deported because he is a foreign agent attempting to subvert the Constitution.

It’s one thing for an American citizen to ideologically assault and trash the Constitution, although odious such activity would be protected under the First Amendment, but Piers Morgan is a foreigner in a position of influence on prime time television. He is a foreign agent using his power to lobby for the constitutional rights of American citizens to be overturned. If I was on British television every night calling for the Queen to be dethroned and kicked out on the streets, many British people would also call for me to be deported. Morgan is subverting the very foundation of American freedom, the second amendment. 

 
Morgan is clearly correct in stating that stating opinions in favor of gun control is protected by the First Amendment. The real question concerns whether Taranto and Jones are correct in there being grounds for the federal government to deport the chat show host.

In Kleindienst v. Mandel, Belgian journalist Ernest E. Mandel – who was editor-in-chief of the Belgian Left Socialist weekly La Gauche – was appealing being denied a nonimmigrant visa to visit the United States in the fall of 1969 to speak at a conference. The Court upheld the denial of the visa on the grounds that the Immigration and Nationality Act of 1952 provided that avowed Communists such as Mandel were to be denied visas unless the Attorney General approved it at his or her discretion. At the time, the Immigration and Nationality Act of 1952 stated that aliens were ineligible for visas if they fell into certain categories.  Aliens to be excluded from receiving visas included:

Aliens … who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship ….

Aliens who write or publish . . . (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship ….

The Immigration and Nationality Act of 1952 has since been amended. It now states “any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party … is inadmissible.”

The first thing to note is that Piers Morgan is already in the country, and his visa would have to be revoked for him to be deported. The second more important point is that there are simply no grounds on which to deport Morgan. There is no evidence that he is or ever has been the member of any totalitarian party. In fact, it is rather unlikely that he ever has. One would guess that Morgan is most likely a member of the UK’s Labour Party, which is equivalent to the Democratic Party of the United States. Therefore, Kleindienst v. Mandel simply is not relevant to Morgan.

Morgan is expressing a fairly mainstream opinion today. Stricter gun control laws are advocated by many Americans. While such an argument is dubious, dubious opinions are not forbidden in the United States. The attitude expressed by Taranto, Jones, and the signers of the petition to deport Morgan is a symptom of the disease of attacking one inalienable natural right to defend another one. The remedy to bad speech is not to censor it. The remedy is good speech. The case in defense of the Second Amendment is far stronger than the case against it, and Morgan is not exactly a skilled orator. The answer is not to kick Morgan out of the country but to ridicule him and to make loud and strong arguments in defense of the Second Amendment.  

Anchor Babies Aweigh

A pregnant woman enters the United States illegally and gives birth to her baby within the country. Should this child be granted American citizenship automatically in virtue of being born in the United States? With illegal immigration being such a serious issue at present, the question of "anchor babies" becomes a crucial one.

Leading Republican Senators including Republican Senate leader Mitch McConnell of Kentucky, John McCain and John Kyl of Arizona, Jeff Sessions of Alabama, and Lindsay Graham of South Carolina have challenged birthright citizenship with McConnell stating that he supports holding Congressional hearings on the Fourteenth Amendment right. With the ongoing battle over the Arizona immigration law raging and growing suspicion that President Obama seeks to grant amnesty through executive fiat, the issue of "anchor babies" will surely become more contentious in the coming days. The Department of Homeland Security estimates that there are 10.8 million illegal aliens living in the United States. The Pew Hispanic Center estimates that of 2008, there are 3.8 million illegal aliens living in the United States whose children are United States citizens.

As with all federal legal issues, the starting point must be careful examination of the Constitution. Section 1 of the Fourteenth Amendment states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Jeff Sessions has said "I'm not sure exactly what the drafters of the [Fourteenth] amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen." Senator Sessions' instincts concerning how the analysis of the issue should begin are quite right. But is he right about the intentions of the drafters of the Fourteenth Amendment?

The Fourteenth Amendment was ratified on July 9, 1868 during the Reconstruction Era following the Civil War. In 1857, the infamous Dred Scot decision held that no black of African descent, even a freed slave, could be a citizen of the United States. The Fourteenth Amendment was designed, in part, to prevent states from denying citizenship to freed slaves by validating the Civil Rights Act of 1866, which stated that "All persons born in the United States and not subject to any foreign power, excluding Indians and not taxed, are hereby declared to be citizens of the United States."

The question of what "born or naturalized" in the United States means is clear enough, but to determine the constitutional question concerning "anchor babies," one must determine what "subject to the jurisdiction" of the United States means. "Jurisdiction" does not simply mean subject to the laws of the United States. Any person within the United States is subject to the laws of the United States whether a citizen, a visitor, a foreign diplomat, or an illegal alien. Jurisdiction implies allegiance to the United States, and this, of course will not include visitors, foreign diplomats, or illegal aliens. However, this interpretation of "jurisdiction" and of the broader interpretation of citizenship is grounded in the theory of citizenship that one espouses.

The traditional theory of citizenship, grounded in feudalism, is the British view of birthright citizenship. Sir William Blackstone articulated this view clearly in his Commentaries on the Laws of England where he said that natural allegiance "is due from all men born within the king's dominion immediately upon birth," and therefore, such allegiance "is a debt of gratitude which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance." The competing theory is the theory of consent citizenship. This view is summarized by Thomas Jefferson in his Summary View of the Rights of British America where he argues in favor of a natural right to leave the country where "chance and not choice" has placed a person. This theory is inherent in the Declaration of Independence as revolution is not possible if one holds an allegiance to the mother country by birth. This view was given concrete form in the Expatriation Act of 1868 which recognized the right of expatriation as "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." During this period, the birthright theory of citizenship was generally viewed as being incompatible with the principles of republican government.

This was all changed by the Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was the child of Chinese immigrant parents who were not citizens. He was born in San Francisco sometime between 1868 and 1873. After leaving the United States with his parents to return to China, Wong Kim Ark returned to the United States on his own in 1890 and was granted entry "upon the sole ground that he was a native-born citizen of the United States." However, in 1895 upon returning from a visit to China, he was denied permission to enter the United States. The Collector of Customs who denied him entry argued that Wong Kim Ark, "although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China." In a 6-2 decision, the Supreme Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth. The Court's rationale was that the Fourteenth Amendment had to be interpreted in light of English common law, and hence, it officially adopted the birthright theory of citizenship. In his dissent, Justice Melville W. Fuller argued that the United States had rejected this view after independence through recognizing the right of expatriation.

The birthright theory of citizenship, although officially accepted by the Supreme Court, is inconsistent with the republican form of government. It is also inconsistent with the very notion of natural rights. In effect, it means that the American Revolution was illegitimate and that the Founding Fathers still owed allegiance to the English Crown despite its tyranny. The birthright theory of citizenship returns all citizens to the state of being serfs who are nothing but the possessions of the ruling powers. While the debate on the issue will no doubt be couched in terms of irrelevant and misleading fringe issues with charges of racism flying freely, the issue is much larger than simply whether a child born in the United States to illegal aliens ought to be made automatically a citizen. The important issue is the status of each American citizen and whether he or she gives allegiance to the government freely through consent or is simply a serf that is owned by his or her lords.

Legal experts widely believe that birthright citizenship can only be changed by amending the Constitution. As always, this should be viewed as the last possible solution, a "nuclear option" as it were. The first line of attack should be seeking to have the erroneous precedent set in United States v. Wong Kim Ark overturned in court. However, as with most things associated with the immigration issue, politicians are unlikely to do anything that might alienate Hispanic voters. As always, our weak willed leaders like McConnell, McCain, Kyl, Sessions, and Graham are likely to want to sound tough on illegal immigration without actually doing anything about it. They will do what is necessary to maximize the number of votes they can win on both sides of the issue.

The theory of birthright citizenship should be rejected for reasons other than the problem of illegal immigration. It is not even a band aid for that wound anyway. It should be rejected to restore the status of autonomous and consenting citizen to each and every American citizen. The problem of illegal immigration will not be solved by turning innocent children into scapegoats. It will only be solved by dismantling the entitlements of the welfare state, by making legal immigration more streamlined, and by severely penalizing the Economic Royalists on the right and left who wish to employ illegal aliens at virtual slave wages in order to save a few dollars while driving down American wages as a result.