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.







UCI Law Presents Human Trafficking and Child Marriage Forum on Saturday, September 14, 2019

Human trafficking and child marriage are global problems that deny autonomy to and harm the physical, sexual, and emotional health of its victims.

Here are some disturbing facts about human trafficking:

  • Human trafficking is a term for a modern form of slavery.  It is a criminal human rights violation.
  • There are more slaves today than at any time in human history.
  • 20.9 million people around the world are victims of human trafficking.
  • Human trafficking is one of the fastest growing crimes in the world, second only to drug trafficking.
  • The world-wide business of human trafficking brings in an estimated $150 billion a year.
  • According to the U.S. State Department, approximately two million women and children are victims of human trafficking every year.
  • Half of human trafficking victims are younger than 16 years old.

On September 14, 2019, UCI Law School is hosting an important Human Trafficking and Child Marriage Forum.

Scholars, experts, legislators, and public officials will share research findings, examples from their work, and policy proposals for the way forward.

The forum is sponsored by Global Hope 365, UCI Initiative to End Family Violence, and UCI Law School, and will provide the opportunity to exchange ideas for solutions and increase momentum for legislative change.

Forum participants will include Dr. Melissa Withers (USC Keck School of Medicine), Dr. Jodi Quas (UCI School of Social Ecology), Jane Stover (UCI School of Law), Rima Nashashibi (Global Hope 365), Michelle Hester (Waymakers), Chief David Nisleit (San Diego Police Department),  Sergeant Juan Raveles (Anaheim Police Department), Dr. Corey Rood (UCI School of Medicine), Debbie Martis (Riverside County Anti-Human Trafficking Task Force), Dr. Sandra Morgan (Vanguard University Global Center for Women and Justice), State Senator Connie M. Leyva, and Orange County Supervisor Doug Chafee.

Date: Saturday, September 14, 2019

Light lunch: 11:30 a.m.-12:00 p.m.
Event time: 12:00-2:30 p.m.
UCI School of Law | EDU 1111
401 E. Peltason Dr., Irvine, CA 92697

Registration is $10 and includes lunch.

Free for UCI students.

MCLE credit is available.

Register here.

Stop Human Trafficking in Irvine: Look Beneath the Surface

Human-Trafficking (2)Irvine is among the safest cities in America.  Yet even here in Irvine, where crime statistics are extremely low, others are forced to labor against their will.  We need to be alert for those who live and work among us and are enslaved. To recognize and stop it, we will need to look beneath the surface.

Here are some disturbing facts about human trafficking:

  • Human trafficking is a term for a modern form of slavery.  It is a criminal human rights violation.
  • All trafficking victims share one essential experience: the loss of freedom.
  • There are more slaves today than at any time in human history.
  • 20.9 million people around the world are victims of human trafficking.
  • Human trafficking is one of the fastest growing crimes in the world, second only to drug trafficking.
  • The world-wide business of human trafficking brings in an estimated $150 billion a year.
  • According to the U.S. State Department, approximately two million women and children are victims of human trafficking every year.
  • Half of human trafficking victims are younger than 16 years old.

Human trafficking is taking place right before our eyes, in our own communities and places of business.  It occurs in our office buildings, malls, restaurants, and hotels, as well as in residential brothels and street-based commercial sex establishments.

In most cases, human trafficking is hidden in plain sight – disguised by being right out in the open, masquerading as a legitimate business, such as a nail salon or janitorial company.

Unless we know what to look for, we will probably not even see it.

slavery_look_beneath_surface_girlIn the area of sex-based slavery, businesses appear and disappear overnight. Customers seeking their services find them on internet chat rooms. Women held captive in these businesses are moved frequently between locations and cities.  Traffickers do not want the women to learn too much about their location or to have relationships with customers or others who could help them escape. Too often, victims of sex trafficking do not even know that we would consider them to be victims of a crime.

Labor traffickers use individuals to perform labor or services through the use of force, fraud, or coercion. Labor trafficking includes situations of debt bondage, forced labor, and involuntary child labor. Often the victims of human trafficking owe large debts they are unable to pay it off, or were recruited through false promises concerning the nature and conditions of his/her work.  People are promised immigration, documentation, education, a career, and then are forced into slave labor or debt bondage and kept isolated and beaten, with no identification, and are told that they will be punished or imprisoned by legal authorities rather than helped.

Traffickers most often prey on the most vulnerable, the undocumented, and on non-English speakers.  But traffickers prey on all nationalities, including native-born American.

Victims and their captors are often from the same ethnic group and might even know each other’s families, so the threat of violence against relatives at home is used to control them.

We can stop human trafficking by knowing what to look for and then reporting our observations to local authorities or the National Hotline at 888-373-7888.

At the airport, look for travelers who are not dressed appropriately for the weather or who have few or no personal items, are less well dressed than their companions, or wearing clothes that are the wrong size; have a tattoo of a bar code, or the word “Daddy,” or man’s name; cannot provide details of their departure location, destination, or flight information.

Also look for travelers whose communication seems scripted, or who appear to be unable to move around freely, or appear to be controlled, closely watched or followed; who appear afraid to discuss themselves around others, deferring any attempts at conversation to someone who appears to be controlling them.

In regard to children, look for those who are dressed in a sexualized manner, or seem to be under the influence of drugs or alcohol, are malnourished or show signs of physical or sexual abuse, such as bruises, scars, or cigarette burns.

In our communities and neighborhoods, look for those who appear not to be free to leave or to come and go as he/she wishes; are unpaid, paid very little, or paid only through tips.

Also look for those who work excessively long and/or unusual hours; are not allowed breaks or who suffer under unusual restrictions at work; whose work or living conditions involve high security measures, such as opaque windows, boarded up windows, bars on windows, barbed wire, or security cameras.

We should also be alert for persons living or working in our communities who avoid eye contact, or appear to be fearful, anxious, depressed, submissive, tense, nervous or paranoid; or who exhibit unusually fearful or anxious behavior regarding law enforcement.

We need to be on the alert for people living or working in our community who appear not to be in control of his/her own money, with no financial records or bank account; who are not in control of their own identification documents (ID or passport); are not allowed or able to speak for themselves; who cannot explain or state where they live; or who appear not to know basic facts about the city or community where they are living.

Poor physical health can also be an indication of human trafficking.  We should be alert for people living or working in our community who appear to lack medical care or appear to be malnourished or shows signs of physical and/or sexual abuse, physical restraint, confinement, or exposure to harmful chemicals.

With two million victims every year and $150 billion in illicit profits, law enforcement cannot stop it alone.  Everyone one of us needs to be alert to human trafficking and ready to inform the proper authorities whenever they suspect that someone they know or see is a human trafficking victim.

Human trafficking is a global problem, but we can be a crucial part of a local solution.

Irvine is a community that cares and together we can make a difference.