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.

 

 

 

 

 

 

Tell the Irvine City Council to Agendize the Proposal to Educate Residents and Law Enforcement about California’s Red Flag Law and Gun Violence Restraining Orders

California has a “red flag law” that allows family members or police to seek a court order to temporarily remove guns from mentally unstable people, but too few are aware of it. I have asked the mayor to place my proposal that Irvine educate our residents and police about California’s red flag law and its appropriate use on the City Council agenda. 

Here is the memo that I sent to the mayor:

“​Re: Reducing Gun Violence and California’s Red Flag Law

After the May 2014 mass shooting in Isla Vista in which a mentally unstable young man killed six people and injured fourteen others before killing himself, California passed a ‘red flag law’ that empowers family members and law enforcement officers to petition a court to obtain a “Gun Violence Restraining Order” (GVRO) to temporarily limit a person’s access to guns if they are an immediate and present danger of harming themselves or others.

Red flags laws have now been passed in 17 states and several more states are considering such laws. Red flag laws have been supported by both Republicans and Democrats. In the aftermath of the recent mass shootings in Dayton and El Paso, President Trump declared that ‘We must make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do, those firearms can be taken through rapid due process. . . That is why I have called for red flag laws, also known as extreme risk protection orders.’

Red flag laws are not just meant to prevent mass shootings. September is Suicide Prevention Awareness Month. Nearly two-thirds of the gun deaths in the United States — over 22,000 per year — are suicides. Eighty-three percent of suicide attempts by gun succeed; suicide attempts by other means are fatal only 5% of the time. A GRVO can save lives by temporarily preventing a loved one from accessing the most lethal form of suicide until the crisis passes, giving them a chance to get the help they need.

But for red flag laws to be effective, it is important that members of the public and local police officers are aware of the law and encouraged to obtain Gun Violence Restraining Orders when appropriate. Unfortunately, awareness of our red flag law is not nearly as widespread as it should be.

​I am proposing that the Irvine City Council work with City Staff and the Irvine Police Department to devise and implement a public awareness program regarding California’s red flag law, hold training sessions on the red flag law for members of the Irvine Police Department, and direct our law enforcement officers to use GVRO’s when appropriate.

I am requesting that this item be placed on the agenda for the Irvine City Council.”

Due to the City Council’s new restrictive agenda policy, which prohibits an item from being placed on the agenda unless the mayor or two city council members agree to do so, I can not place this item on the agenda without the support of the mayor or other councilmembers.  Accordingly, I have asked Irvine Mayor Christina Shea to agree to put this proposal on the Irvine City Council agenda.

Red flag laws save lives.

A recent study by the U.C. Davis School of Medicine found that California’s red flag law has significantly reduced gun violence. According to Laura Cutilletta, legal director of the Giffords Law Center, California’s red flag law acts as a sort of timeout, so someone in psychological distress can get counseling while their fitness to possess a gun is evaluated.  “It’s a way to allow for temporary removal of firearms in a situation just like this: where somebody has made threats, where they have been expelled from school because of those threats, they’re in counseling, and parents or the school or whoever it is understands that this person poses a threat,” she explained.

OC Sheriff’s deputies in Mission Viejo successfully petitioned the court for a Gun Violence Restraining Order and temporarily removed over 22 firearms and 3,000 rounds of ammunition from the home. All the firearms were legally obtained by the suspect who was arrested for domestic violence.

However, the effectiveness of the red flag law has been limited by the lack of awareness of the law on the part of both the public and the police.  Too often, neither the public nor the local police are aware of or encouraged to obtain Gun Violence Restraining Orders.

A national organization, Speak for Safety, has formed for the specific purpose of raising awareness of the Gun Violence Restraining Order as a tool to remove firearms and ammunition from people who are an immediate danger to themselves or others.

Recently, deputies from the Orange County Sheriff’s Department  a domestic violence victim in Mission Viejo who feared for her family’s safety. Deputies petitioned the courts for a Gun Violence Restraining Order and an Emergency Protective Order. They temporarily removed over 22 firearms and 3,000 rounds of ammunition from the home. All the firearms were legally obtained by the suspect who was arrested for domestic violence.

But too often, neither family members nor law enforcement personnel know that such a gun violence prevention tool exists, even in states, like California, that have very effective GVRO laws on the books.

This the reason I have proposed  that the Irvine City Council work with City Staff and the Irvine Police Department to devise and implement a public awareness and education program regarding California’s red flag law, hold training sessions on the red flag law for members of the Irvine Police Department, and direct our law enforcement officers to use GVROs whenever appropriate.

Please join me in this effort by contacting the Mayor and the Irvine City Council and urging them to support this common sense proposal to use California’s existing red flag law to prevent gun violence and save lives in Irvine.

Let’s Reduce Gun Violence By Educating the Public and Training Our Police to Use California’s “Red Flag” Law

California has some of the country’s strictest gun control laws; these laws are likely the reason that California has one of the lowest overall gun deaths per capita in the nation.

Yet, as the recent mass shooting in Gilroy shows, our state laws are not enough, by themselves, to prevent our residents from becoming victims of gun violence. In order to better protect our residents in California from gun violence, two more crucial steps need to be taken.

One of these steps — and by far the most important — is that Federal gun regulations must catch-up to California’s. 

The assault rifle used in the mass shooting in Gilroy is banned in California, but it is legal in our neighboring state of Nevada, where it was legally bought by the killer three weeks before the shooting.

The killer also had several high capacity magazines for the weapon, which are also illegal in California, but not in Nevada where they were bought.

Until the federal government finds the courage to defy the NRA and the gun dealer lobby, it will be very difficult to prevent these weapons of war from other states from being brought into and used in California.

For this reason, national action on gun violence should be advocated by everyone in California who cares about reducing gun violence.  Politicians who support the current president’s policy of giving veto power over federal gun regulations to the gun dealer lobby are undermining the effectiveness of California’s gun laws. For California to be safe, assault rifles and large capacity magazines must be outlawed in all of the states.

But another important step can be taken now, by us, even at the local level. That step is to inform and educate the public — and train our police officers — on the effective use of California’s gun regulations that are already on the books.

Perhaps the most important of these gun regulations is California’s “red flag” law, which empowers family members and law enforcement officers to petition courts to obtain a “Gun Violence Restraining Order” (GVRO) to temporarily limit a person’s access to guns if they are an “immediate and present danger” of harming themselves or others.

In 2014, California became the first state to let family members ask a judge to remove firearms from a relative who appears to pose a threat.  The “Gun Violence Restraining Order” law (California Penal Code Section 18100 et sec), modeled after domestic violence restraining orders, allows police or family members to obtain a judge’s order to disarm a gun owner they fear will turn violent. The order requires the gun owner to surrender all firearms for 21 days, and can be extended to a full year after a hearing.

The California legislature took action after a mentally ill man killed six students and wounded 13 others near the University of California, Santa Barbara, before killing himself. Authorities were legally unable to confiscate the weapons of the killer, despite his family’s having expressed concerns to authorities that he would become violent.

California’s law also empowers police to petition for the protective orders, which can require authorities to remove firearms for up to one year. Fifteen states and the District of Columbia have since adopted similar laws.

Red flag laws save lives.

A recent study by the U.C. Davis School of Medicine found that California’s red flag law has significantly reduced gun violence.

According to Laura Cutilletta, legal director of the Giffords Law Center, California’s red flag law acts as a sort of timeout, so someone in psychological distress can get counseling while their fitness to possess a gun is evaluated.  “It’s a way to allow for temporary removal of firearms in a situation just like this: where somebody has made threats, where they have been expelled from school because of those threats, they’re in counseling, and parents or the school or whoever it is understands that this person poses a threat,” she explained.

However, the effectiveness of the red flag law has been limited by the lack of awareness of the law on the part of both the public and the police.  Too often, neither the public nor the local police are aware of or encouraged to obtain Gun Violence Restraining Orders.

A national organization, Speak for Safety, has formed for the specific purpose of raising awareness of the Gun Violence Restraining Order as a tool to remove firearms and ammunition from people who are an immediate danger to themselves or others.

Too often, neither family members nor law enforcement personnel know that such a gun violence prevention tool exists, even in states, like California, that have very effective GVRO laws on the books.

San Diego is an exception.  Since 2017, San Diego County has issued more than 300 orders, more than any other county in the state. They have been used to intervene in escalating cases of domestic violence, to prevent potential suicides, and with people with potentially dangerous mental illness. In the end, the police have seized more than 400 weapons and nearly 80,000 rounds of ammunition. As San Diego City Attorney Mara Elliott has stated, ““We have no problem with responsible people having guns,” she said. “Our concern are the people who are no longer responsible. That’s when we’ll step in.”

Student march on Harvard Avenue in Irvine for stricter gun control. Photo: Jeff Gritchen, Orange County Register/SCNG).

The San Diego City Attorney’s office has been given a grant by the State of California to provide this training.  According to the San Diego City Attorney’s office, “Using case studies, we explain ways to apply the law, describe the process for obtaining a GVRO, and address complex issues concerning domestic violence, juveniles and individuals with neurological disorders, including dementia and Alzheimer’s. We also devote a significant amount of time to the topics of service, search warrants and seizure (firearms). The curriculum is directed at those responsible for implementing and coordinating a GVRO program at their agencies. Typically, all forms of law enforcement and city attorneys, with law enforcement clients, would directly benefit from this event. We have received nothing but positive feedback, increased interest and requests for more training from the law enforcement agencies and city attorneys we have worked with so far.”

You can see San Diego’s slide presentation about California’s red flag law here.

I believe that Irvine should also be a leader in utilizing the common sense gun control regulations that are already on the books.

Therefore, I will propose that the Irvine City Council work with City Staff and the Irvine Police Department to devise and implement a public awareness and education program regarding California’s red flag law, hold training sessions on the red flag law for members of the Irvine Police Department, and direct our law enforcement officers to use GVROs whenever appropriate.  We should contact both the San Diego City Attorney’s Office and the State of California about providing us with assistance with red flag training, procedures, and protocols.

Please join me in this effort by contacting the Mayor and the Irvine City Council and urging them to support this common sense proposal to use California’s existing red flag law to prevent gun violence and save lives in Irvine.

Everyone who knows someone who may be at risk of hurting themselves or others with a gun, should know how to “Speak for Safety” with a GVRO.

Sign our petition for common sense gun regulation here.

 

 

Yes, Let’s Create a Gun Violence Task Force — And Let’s Also Have a Real Discussion about How to Prevent Mass Shootings and Gun Violence

Based on her recent social media post, it appears that in the wake of three recent mass shootings (in Gilroy, California, El Paso, Texas, and Dayton, Ohio) leaving at least 45 people dead and many dozens more injured, Irvine Mayor Christina Shea intends to create a task force to discuss what we can do in Irvine to prevent gun violence.

Significantly, Mayor Shea asks that we not turn this discussion into a “partisan” issue, and that we not hold local, state, or national politicians responsible for their actions, or lack of action, leading to the proliferation of mass shootings and gun violence.

I fully support a discussion of how our City Council can help prevent Irvine from becoming the site of the next gun violence atrocity. This discussion is long overdue. Our nation is suffering from a gun violence emergency.

But the discussion must not be a sham, and not be muzzled from the very beginning by preventing mention of the fact that Republican politicians — at every level of government — have sided with gun dealers and the NRA over the safety of our communities and families, and have stubbornly blocked Congress from enacting meaningful, common sense federal gun regulation.

We must also be willing to acknowledge the fact that President Donald Trump has incited violence and manipulated racial hatred in ways that many of us had hoped belonged to our tragic past. And we must explicitly reject and condemn Trump’s racist rhetoric.

As President Obama recently said, as elected officials and community leaders, we must reject the rhetoric of those “who demonize those who don’t look like us, or suggest that other people, including immigrants, threaten our way of life, or refer to other people as sub-human, or imply that America belongs to just one certain type of people.” Such language “has no place in our politics and our public life” and it is time “for the overwhelming majority of Americans of goodwill, of every race and faith and political party, to say as much — clearly and unequivocally.”

Let’s have a real discussion of mass shootings and gun violence — without any attempts at mirco-management by the Mayor or self-serving limitations on that discussion being imposed in advance by local politicians who are afraid that the public is fed up with the Republican Party’s spinelessness in the face of the NRA and the racist rhetoric of Trumpism, and their policy of creating diversions after each mass shooting rather than enacting real, common sense, gun control regulation.

I also ask that this Task Force be comprised of and led by real experts in the field of gun violence prevention. We have many such experts here in Irvine on the faculty of UCI and the UCI School of Law.  Our task force should not be solely composed of — or led by — politicians with an interest in self-promotion or self-protection, or protecting their political allies from justified and necessary criticism.

In addition, I suggest that the Irvine City Council immediately direct our Irvine Police Department to promote awareness of California’s Gun Violence Restraining Order (GVRO) law, which allows family members and law enforcement to seek the temporary removal of firearms from someone they believe poses a danger to themselves or others.

While GVROs have been called “the best tool in the state of California for responding to a threat of gun violence,” they are rarely used because residents and law enforcement remain largely unaware of the law and its potential to help stop a crime before it has been committed.

You can see a video presentation of California GVROs here:

I also propose that the City of Irvine and the Irvine Police Department remind residents about California’s safe storage laws requiring that guns be locked away from minors and anyone who should not have access to them.

I look forward to a lively, positive and open-minded discussion of what we can do in Irvine to prevent mass shootings and gun violence, including an awareness and educational campaign about GVROs, issuing official statements from our City Council calling on President Trump to stop his inflammatory rhetoric demonizing immigrants, Muslims, and people of color, and calling on Congress to pass common sense gun regulations relating to universal background checks, military-style assault rifles, and high capacity magazines.

 

OC Register Editorial: Democracy Cannot be Stage-Managed by the Majority for their Own Convenience and Political Advantage

The Orange County Register’s editorial of July 17, 2019, correctly calls out and condemns the recent move by the Irvine City Council to prevent a Council Member from putting an item on the agenda unless two other members agree to do so.

As the Register states, “The transparent goal is to shut down the views of the political minority. Irvine officials said they want to stop ‘grandstanding,’ but one person’s grandstanding is another’s chance to raise vital concerns.”

The Register also recognizes that while the new rule was adopted specifically to silence me, the effect of the rule will be to silence all disagreement and dissent:

“Fox has previously discussed supposedly ‘divisive’ issues ranging from flying the LGBTQ flag at City Hall to creating a veterans’ cemetery near the Great Park. But this fracas isn’t about the particular issues any member might want to discuss, but about whether a duly elected official has the right to publicly discuss them. Councils are not private clubs . . . These are the public’s meetings and all officials, even minority voices, represent their constituencies. All elected bodies need to encourage wide-ranging discussions so the public can be part of the self-government process – and not just observers of a carefully crafted script. That’s the essence of representative democracy.”

Thank you to the OC Register for recognizing that public meetings in a real democracy cannot be stage-managed by the majority for their own convenience and political advantage.

As I’ve said before, Irvine’s current pro-Trump Council majority, again aided by its ostensibly Democratic ally, has made it clear that they are following in Irvine the very same playbook of obstruction and bullying used in Washington by Trump and Mitch McConnell, and with the same goal: to silence opposing voices.

But I have no intention of being silent.

And neither do you.

As with Trump and McConnell, we must persist and resist every day, and throw them out decisively in November 2020.

In the meantime, I’ll continue to raise my voice to speak for progressive policies and values — like respect for LGBTQ people, a state cemetery for our veterans, implementation of a serious plan to tackle climate change, more accessible child care, ending sexual violence and discrimination in the workplace, building affordable housing, and ensuring greater government transparency — as I was elected to do.

 

No, We Won’t Back Down

At its last meeting, the Irvine City Council took the unprecedented step of voting to prohibit a council member from placing an item on the agenda without two other council members’ approval.

Now, only the mayor will be allow to put an item on the agenda — a power that until last week had for decades belonged to every individual member of the City Council.

There have been many shifting majorities on the City Council over the years, but no other Council has gone so far to silence dissenting voices and points of view.

You can read about what took place in this excellent article in Voice of OC, including how this new rule is directed squarely at me in retaliation for proposing that Irvine fly the Pride Flag at City Hall, and how they made sure to propose the new rule — and then quickly enact it —  while I was on a long-planned trip to Alaska.

The truth is that Irvine’s Republican, pro-Trump Council majority — created by appointment in a back-room deal with its ostensibly Democratic ally and the developer FivePoint — has made it clear that they are following in Irvine the very same playbook of obstruction and bullying used in Washington by Trump and Mitch McConnell, and with the same goal: to silence opposing voices.

But I have no intention of being silent.

And neither do you.

As with Trump and McConnell, we must persist and resist every day.

And throw them out decisively in November 2020.

In the meantime, I’ll continue to raise my voice to speak for progressive policies and values — like respect for LGBTQ people, a state cemetery for our veterans, implementation of a serious plan to tackle climate change, more accessible child care, ending sexual violence and discrimination in the workplace, building affordable housing, and ensuring greater government transparency — as I was elected to do.