Every Immigrant and Child of Immigrants in the United States Should be Alarmed by Trump’s Attack on Birthright Citizenship

Every immigrant and child of immigrants in the United States should be alarmed by Trump’s attack on birthright citizenship to question the eligibility of Kamala Harris to serve as president. The conservative legal attack on birthright citizenship is no longer just a fringe argument. If Trump gets another term, it could well become law, removing citizenship from millions of Americans born in the U.S. to immigrant parents.

Trump has tweeted that “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree. . .”

Almost immediately after Joe Biden announced that he had chosen California’s junior U.S. Senator, Kamala Harris, as his running mate, Newsweek magazine published an article by Chapman Law School professor John Eastman questioning whether Harris is eligible to be president.  Eastman’s argument against Harris’ eligibility stems from his belief that she is not a “natural born” citizen of the United States under the language of the U.S. Constitution because, although she was born in this country, neither of her parents were U.S. citizens at the time of her birth.

Here is Eastman’s succinct statement of his argument against birthright citizenship:

“The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does — and it provides that “all persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.” (Emphasis in original).

This is not a new argument for Eastman or many other “Federalist Society” conservatives.  “Birthright citizenship” — the principal that one become a U.S. citizen simply by being born in the United States — has long been a target of those who want to limit immigration, as well as those who want to keep America white.

The principle of birthright citizenship in our Constitutional law was inherited from the English common law, where it was called jus soli (“right of soil”), in contrast to citizenship based on the principle of jus sanguinis (“right of blood”).

As opponents of birthright citizenship often point out, very few other countries endow citizenship in this way; instead, most countries require that one or both of a person’s parents be citizens of the country before their children can be citizens, regardless of where the childen were born.

The eligibility requirements for U.S. president and vice president are spelled out in Article II of the Constitution:

Wong Kim Ark in 1904

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

The Constitution did not originally define citizenship.  However, in 1868, as part of an historic overhaul of the Constitution in the aftermath of the Civil War known as the Reconstuction Amendments, the 14th Amendment was adopted to clarify who was to be deemed a citizen of the United States. The language of the 14th Amendment states that “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.”

As Eastman and other anti-birthright citizenship advocates point out, the specific purpose of this language was to overrule the Supreme Court’s Dred Scott decision that Black people were not citizens of the United States.  It was not until the case of United States v. Wong Kim Ark (1898) that this language was tested in regard to whether it applied to a child of immigrants.  In that case, the Supreme Court held, by a vote of 6-2, that under the Fourteenth Amendment, Wong Kim Ark, a man born in San Francisco to Chinese citizens who had a permanent domicile and residence in the United States — and whose parents were not employed in a diplomatic or other official capacity by a foreign power — was a citizen of the United States.  The majority held that the language o the 14th Amendment regarding citizenship did not just apply to African Americans, but should be interpreted in light of birthright citizenship principle of the English common law, which included virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country’s territory. Since that time, numerous subsequent decisions of the federal courts have applied the principle of birthright citizenship under the 14th Amendment to the children of foreign nationals born in the United States.

According to Eastman and many other conservatives, United States v. Wong Kim Ark was wrongly decided or has been wrongly interpreted. Specifically, Eastman contends that it misinterpreted the citizenship clause of the 14th Amendment, which should be understood only as a clarification and solidification of the citizenship status of former slaves and their descendents, not immigrants from China or other countries.

He further argues that the issue in Wong Kim Ark was whether a child born to Chinese immigrants “who had become lawful, permanent residents in the United States” and that “the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.”

Eastman then applies his anti-birthright citizenship analysis to the facts about the parentage of Kamala Harris, asking whether her parents (her mother was born in India and her father was born in Jamaica) were “merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act.”  If that were the case, Eastman argues, “then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers — Jamaica, in the case of her father, and India, in the case of her mother — and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.”

Kamala Harris’ parents, Shyamala Gopalan and Donald Harris, immigrants from India and Jamaica.

Let’s pause for a moment to understand the enormous impact of what Eastman is asserting — and which many other conservatives have also asserted and to which President Trump has now clearly stated his agreement.

First, it would mean that Kamala Harris is likely not eligible to be president (or vice president) of the United States.

Second, it would call into question the citizenship of tens of millions of Americans who were born in the United States but whose parents were not citizens.

Of course, it would also call into question the citizenship of their children and their children’s children, and so on.

I am not going to refute Eastman’s argument here. That has been done by many historians and constitutional law scholars and can be read here, here, and here.

What must be stressed is that the Eastman/Trump argument against birthright citizenship is no longer a fringe idea.  Instead, it is close to mainstream in conservative and Republican legal circles, such as the Federalist Society (which Trump and the Republican Party have given a prominent role in selecting federal judges) and could easily become the law of the United States if Trump gets another term and gets to appoint more Justices to the U.S. Supreme Court. 

Trump has made clear that he wants to end birthright citizenship “one way or another.” If that were to happen, the citizenship of tens of millions of people born in the United States to immigrant parents, and the children of these children, would be in question.

That’s part of what’s at stake in the 2020 Election.

 

 

 

 

 

 

Irvine Should Repeal Its Anti-LGBTQ Ordinance Now!

At the Tues., July 14, 2020, Irvine City Council meeting, I will move to repeal Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] as unconstitutional under the Equal Protection Clause of the United States Constitution and in violation of California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Councilmember Farrah Khan has agreed to join me in putting this item on the July 14 Council agenda and in supporting this motion.

Most residents of Irvine do not know that our diverse and forward-thinking city has an ordinance on the books that specifically and explicitly denies anti-discrimination protection to people based on their sexual orientation.

In fact, most residents are shocked when they learn that the Irvine Municipal Code includes the following:

“Sec. 3-5-503. – City Council parameters.

Except as provided in section 3-5-502, the City Council shall not enact any City policy, law or ordinance that:

A.  Defines sexual orientation as a fundamental human right.

B.  Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.

C.  Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”

These provisions were added by Ord. No. 89-1, which was adopted as Measure N by 53% of the voters as an initiative on Nov. 7, 1989, overturning an Irvine Human Rights Ordinance enacted by the Council in July 1988 that prohibited discrimination based on sexual orientation.

The main proponent of the Measure N ballot initiative and the subsequent anti-LGBTQ ordinance was a group calling itself the “Irvine Values Coalition,” led by carwash-developer Michael Shea and his then-wife (and later Irvine mayor) Christina Shea.

According to Christina Shea, the initiative was needed because the earlier Human Rights ordinance gave “special legislative protection to the homosexual, bisexual and lesbian communities” and “homosexuality is characterized by a wide range of sexual perversions, varying degrees of promiscuity and a disproportionate percentage of sexually transmitted diseases.”

This anti-LGBTQ ordinance violates both the Equal Protection Clause of the United States Constitution and California’s Unruh Civil Rights Act.

In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that the Equal Protection Clause of the Constitution prohibits a state from banning LGBTQ people from seeking “specific legal protection from injuries caused by discrimination.”

The facts of Romer v. Evans are as follows: after various cities and counties in Colorado enacted laws prohibiting discrimination based on sexual orientation, the State of Colorado, through a ballot initiative, amended its state constitution to “prohibit[] all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.”  As the Supreme Court explained, under the amendment, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

The Supreme Court declared that the Colorado constitutional amendment was based upon animosity toward homosexual people and lacked a rational relation to any legitimate governmental purpose.  Accordingly, the Court determined that Colorado’s constitutional amendment violated the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, applicable to the states through the 14th Amendment.

Like the Colorado constitutional amendment that the Supreme Court invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance attempts to prohibit local government action “designed to protect . . . homosexual persons or gays and lesbians” [i.e., protects people based on “sexual orientation.”] and like the Colorado constitutional amendment invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.”

Accordingly, Romer v. Evans renders Irvine’s anti-LGBTQ ordinance unconstitutional.

Moreover, not only is Irvine’s anti-LGBTQ ordinance unconstitutional, it also clearly contradicts and is superseded by California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Because state law supersedes any city law or local ordinance, the Unruh Civil Rights Act’s prohibition of discrimination on the basis of sexual orientation anywhere in California means that Irvine lacks the power to declare that “the City Council shall not enact any City policy, law or ordinance that: Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.”

Irvine anti-LBGTQ initiative was one of several ballot measures across the nation in the late 1980s and early 1990s not only to seek to repeal existing anti-discrimination ordinances, but to proactively prohibit any local unit of government from ever passing such ordinances in the future.

Hence, the Irvine anti-LGBTQ ordinance includes provisions that purport to make it extremely difficult for a future Irvine City Council  to repeal it.  According to the ordinance, “Any law or ordinance pertaining to Section 3-5-503 may only be enacted by obtaining the approval of a majority of the voters of the City of Irvine voting on the measure at a regular or special election. Such a measure may only be placed on the ballot by citizen’s initiative or a two-thirds majority vote by the City Council.” [Sec. 3-5-502.].

The Supreme Court in Romer v. Evans made clear that it is an unconstitutional violation of the Equal Protection Clause to single out LGBTQ people for special burdens. including burdening them with special difficulties in enacting anti-discriminatory laws.  According, it is clear that the procedural provisions of Irvine’s anti-LGBTQ ordinance — requiring a 2/3 vote of the Council and then a ballot initiative for repeal — is again a violation of the Equal Protection Clause of the 5th and 14th Amendments because it is designed to make passage of protections against discrimination based on sexual orientation especially burdensome and difficult.

The California Legislature dealt with this very issue in its repeal of the unconstitutional sections of Prop 187 by Senate Bill 396 (2014) by a majority vote of the Legislature without a vote of the entire electorate.

As the Judicial Committee of the California Senate noted, “Under existing law, California’s Constitution only authorizes the Legislature to amend or repeal initiative statutes by way of another statute that becomes effective only when approved by the electors –unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., art. II, Sec. 10, subd. (c).) This bill [SB 396] seeks to repeal several state statutes implemented upon voter approval of Proposition 187, which generally prohibited the provision of various benefits to undocumented aliens. That proposition did not authorize the Legislature to amend or repeal its provisions without voter approval.”

Nevertheless, the Judicial Committee found that the Legislature had authority to repeal the unconstitutional sections of Prop 187 without a vote of the entire electorate. It reasoned that because the bill did not modify or repeal any provisions of Prop 187 except those that are unconstitutional and therefore unenforceable, it did not make any change in existing law. Accordingly, “SB 396 would not impermissibly repeal or amend the initiative; rather, it would merely update California statutes to accurately reflect current law.” The bill passed the Assembly and the Senate with only a single No vote.

The same circumstances exist here.

Like the parts of Prop 187 repealed by a simple majority vote of the Legislature in 2014, the anti-LGBTQ ordinance is unconstitutional and enforceable. Like the unconstitutional parts of Prop 187, although Irvine’s anti-LGBTQ ordinance is unconstitutional and unenforceable, its language remains on the books. Keeping this discriminatory language on the books, “causes confusion and harmful outcomes . . . [Therefore], it is fitting that [we] expressly acknowledge the detrimental impact of the discriminatory [language] by removing its stain from the state’s statutes.”

That is what our City Council needs to do now, and what the precedent of SB 396 gives us clear authority to do: “expressly acknowledge the detrimental impact of the discriminatory [language of Sec. 3-5.501-503] by removing its stain from the [City’s Code.]”

In addition to being unconstitutional and in violation of superseding state laws, Irvine’s anti-LGBTQ ordinance is a cruel and embarrassing relic of a more prejudiced time.

Does Irvine want to remain on record as being one of the very few cities in America, and  indeed the world, that still officially discriminates against people based on their sexual orientation?  I hope not.

For all of these reasons, I will move to repeal Irvine’s anti-LGBTQ ordinance.  

As noted above, Councilmember Farrah Khan has agreed to join me in putting this item on the next Council agenda for Tues., July 14, 2020, and in supporting this motion.

If you agree with us, please tell Mayor Christina Shea and the rest of the Irvine City Council that Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] needs to be repealed NOW.

Contact the Mayor and the Irvine City Council by email here.