OPINION:
Our country has just suffered the largest illegal mass migration in history. In four years, the Democrats opened our borders. They allowed into our country an unvetted and largely impoverished population of nearly 8 million, a population the size of Washington state.
This illegal mass migration has overwhelmed our public schools, public hospitals, homeless shelters, food banks and law enforcement and is costing American taxpayers $160 billion a year to support. Worst of all, it has introduced into our country the most violent criminal gangs and offenders on the planet.
It has also brought to a head the fundamental question of whether any person in the world can break into our country, have a baby at taxpayer expense, have that baby declared an American citizen and then use that as a pretext to remain.
President Trump has issued an executive order challenging that notion for all future births. The Democrats call this a “threat to democracy” and a “constitutional crisis.” That’s what they call anything they disagree with these days, but it is neither. It is the Constitution functioning as it should. The president has created a dispute arising from a difference of opinion in interpreting the Constitution. Opponents in this dispute have appealed to the courts, as they should. Now, the courts will resolve this dispute under the terms of our Constitution.
Meanwhile, I have a question for the Democrats: If the 14th Amendment confers automatic citizenship to anyone born in the U.S., wouldn’t it have said, “All persons born or naturalized in the United States are citizens of the United States”? That’s simple enough.
But that’s not what it says. It says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” What does that mean?
We know that it means the children of former slaves are citizens. That was its stated purpose and the plain language of the amendment, which passed, by the way, over the objections of the Democratic Party. We know from the congressional debate that its authors understood it to exclude foreign nationals merely passing through the country.
The question of our time is whether those who have illegally entered our country in defiance of our laws and who are subject to deportation under those laws can be considered as having accepted the jurisdiction of the laws that their very presence defies.
The Supreme Court has never considered this question. The closest it came was the Ark decision 127 years ago, but that applied to legal immigrants who had accepted the jurisdiction of the United States by obeying its immigration laws and who had taken up legal, permanent residence subject to a treaty ratified by the Senate.
Does the president have the authority by executive order to clarify this matter as part of his organic constitutional responsibility to ensure that the laws are faithfully executed? I don’t know. President Obama claimed the authority to create legal residency for DACA beneficiaries out of thin air, so maybe he does. The courts will decide.
Does Congress have the authority to clear up this matter by statute? Only if it doesn’t contradict the Constitution. Here’s the fine point of the matter: If the 14th Amendment does not give automatic birthright citizenship to the children of those in the U.S. illegally and temporarily, then no law should be necessary to deny them citizenship because no law ever extended that right in the first place. In that case, the president’s executive order is merely declaratory of existing law.
Several lower courts have stayed the president’s executive order. No one is screaming that it’s a “constitutional crisis,” even though many of us strenuously disagree with those judges just as strenuously as the left disagrees with the president. Ultimately, though, we have faith in our Constitution and that as the case progresses through the courts, we will get a clear and authoritative ruling that will determine whether the president’s order stands or whether Congress needs to act by statute or constitutional amendment.
To call this a constitutional crisis is the kind of absurd hyperbole that passes for argument these days by the woke left. I look forward to returning to a time and a society where we can have civil discussions over high principles as our founders envisioned.
• Rep. Tom McClintock, a Republican, represents California’s 5th Congressional District.
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