Progressives may very well have set the table for the end of birthright citizenship by executive order or legislation during the 1990s. This was not their intention, of course, but in their unprincipled pursuit of political power, they unwittingly might have choked off all attempts to cover birthright citizenship in a constitutional mantle.
In a recent interview with Tucker Carlson on Fox News, Michael Anton cut to the heart of the birthright citizenship farce: “Why do bureaucracies typically, in our country anyway, act without authority? Usually, it’s to serve the interest of liberalism. When the administrative state is doing something that it’s not authorized to do, and that no one has ever told it to do, you can bet it’s not doing so for conservative reasons, or for reasons that benefit American citizens.”
Anton’s point is illustrated by efforts in the 1990s to bar illegal aliens from accessing public provisions and services.
Proposition 187, a California initiative championed by then-Governor Pete Wilson, appeared on the November 1994 ballot. The measure sought to stem illegal immigration by removing a major incentive: state-administered services, including healthcare, public education, and welfare benefits. Those certainly are incentives. Why else would current Democratic gubernatorial candidate Gavin Newsom so explicitly dangle the prize of universal healthcare for illegal aliens?
Democrats, however, haven’t always marched in their current lockstep on immigration.
President Clinton, though he argued against Prop. 187, told Californians “it is not wrong for you to want to reduce illegal immigration.” Clinton implored Californians to reject the measure and trust the federal government to “keep working on what we’re doing—stiffening the border patrol, stiffening the sanctions on employers who knowingly hire illegal immigrants, stiffening our ability to get illegal immigrants out of the workforce, increasing our ability to deport people who have committed crimes who are illegal immigrants.”
Clinton was joined by Mexico’s president, Carlos Salinas, in opposition to Prop. 187. “Mexico affirms rejection of this xenophobic campaign,” said Salinas, “and will continue to act in defense of the labor and human rights of our migrant workers.” And here American citizens maintain the quaint idea that their government should serve their interests, rather than the interests of foreigners.
Despite the efforts of Clinton and his progressive allies, California voters passed Prop. 187 by a landslide: 59 percent to 41 percent, with a 60 percent voter turnout.
“We the People” won—but only temporarily.
The measure was challenged by several lawsuits, but a major blow came when activist-judge Mariana Pfaelzer slapped a permanent injunction against the proposition, deeming it unconstitutional. Yet here is where opponents of birthright citizenship for children of illegal aliens might find a silver lining.
Pfaelzer affirmed that Prop. 187 was unconstitutional on the grounds that it infringed upon the federal government’s jurisdiction over immigration, an “exclusively federal domain.”
“California is powerless to enact its own legislative scheme to regulate immigration,” Pfaelzer wrote. “It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits.”
Pfaelzer’s twisted logic surrounding public benefits and their connection to immigration may have sent Prop. 187 to the gallows, but her reasoning in the case incidentally affirmed an opinion of Justice Horace Gray, author of the U.S. v. Wong Kim Ark decision that declared a man born to parents who were lawfully and permanently residing in the United States at the time of his birth was an American citizen.
In that earlier case, Gray affirmed that matters regarding immigration and naturalization are the exclusive jurisdiction “of the legislative and executive branches of the national government.” In the words of Pfaelzer, this is an “exclusively federal domain,” thus within sights of an executive order, such as the one President Trump has proposed, or congressional legislation along the lines of what Senator Lindsey Graham (R-S.C.) plans to introduce.
Still, progressives will be unwilling to admit defeat. The Wall Street Journal, for example, appeals to the authority of a great body of “legal scholars” who have denounced the president’s “plan for an executive order unconstitutional.”
To be clear, when Americans worked their will through the machinery of democracy by referendum to demand reform of our immigration laws, it was unconstitutional. Because according to Judge Pfaelzer, who affirmed Justice Gray, the legislative and executive branches of the federal government alone have jurisdiction over immigration. Now that the legislative and executive branches of the national government see fit to redress a decades-old farce, it is also unconstitutional. Confused? Don’t be. Progressives have appointed themselves as the masters of our institutions, and as such, they insist they alone have jurisdiction over our nation’s fate.
Against such maniacal foes, for whom all things outside their progressive projects are “unconstitutional” by default, “It falls, then, to Trump,” as Anton wrote in the Washington Post in July. Only our president can land a blow against the birthright citizenship chimera unleashed by the subverters of national sovereignty.
If the president is successful in restoring salience and sanity to the concept of citizenship after decades of abuse, progressives will have only their insatiable drive for power in the name of liberalism to thank for it.
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