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'Unconstitutional': Lawyers weigh in on bizarre scenarios of Donald Trump’s relentless threats to end birthright citizenship

New York: The morning after US president Donald Trump threatened an executive order to end birthright citizenship for US-born children of non-citizens, the full blast of the bizarre consequences that may result from what is being widely understood as a blatant election stunt is top of the rundown across the news spectrum in America because of the incredibly disruptive potential of a legally dicey idea that has travelled from the Republican fringe into White House spotlight precisely on Halloween day.

 Unconstitutional: Lawyers weigh in on bizarre scenarios of Donald Trump’s relentless threats to end birthright citizenship

Representative image. AP

The main questions (and not the only ones) that Trump has raised via cleverly timed interviews on Axios and Fox News are these:
- Who (all) will be affected if Trump does sign an executive order ending birthright citizenship?
- Will it apply with retrospective effect?

“Trump’s proposal to end birthright citizenship is unconstitutional” screams the edit page lead in The Washington Post, written by former acting US solicitor general Neal Katyal and George Conway. “Sometimes the Constitution’s text is plain as day and bars what politicians seek to do. That’s the case with President Trump’s proposal to end “birthright citizenship” through an executive order. Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win”, read the opening lines.

New York based immigration attorney Cyrus Mehta answers the questions at two levels. “If Trump follows through, there will be a lawsuit and I think a court will agree that the constitution cannot be altered through an executive order.” This is the reaction of most legal scholars and practitioners, including those who have been showing up on Trump’s favourite telly channel Fox. Mehta also explains in detail the chaos if such an executive order is upheld: “Assuming that such a bill got enacted into law, it would deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child who was not born of parents of the pedigree prescribed in such a law? Would the child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Moreover, would such a law also have retroactive application? It is likely to have retroactive effect since a Constitutional provision ought to only be interpreted in one way for all times. If a new statute interprets the Fourteenth Amendment’s “subject to the jurisdiction thereof” to not include children of parents who were undocumented, or who were not citizens or permanent residents, and this interpretation is upheld by a court,  then children who were born as US citizens will no longer be considered citizens. "How far would one have to go then to strip people of citizenship? Parents, grandparents and even great grandparents will no longer be considered citizens, in addition to the child. Millions upon millions of Americans ensconced in comfortable suburbia will overnight be deemed to be non-citizens, perhaps even illegal aliens and deportable.  The repealing of birthright would certainly have unintended consequences of a nightmarish quality, and it is quite likely that some of the repeal’s most strident champions might be declared as “illegal aliens” and unfit to run for office!”. That sentiment in the closing line has been prime fodder for satirists, cartoonints and common folk the last 24 hours. Sample the Borowitz Report on the latest: “Donald J. Trump on Tuesday signed an executive order stripping the children of immigrant mothers of their citizenship, thus disqualifying himself from being President of the United States.The constitutional crisis came to light moments after the signing ceremony, when a fourth grader visiting the Oval Office on a school tour pointed this out.” “Wait. I was born in the United States to two Indian professionals who later became proud citizens of this country. So... now I would be a citizen of India? My contributions to this country would be as a foreigner with no rights?”, asks Mindy Kaling, on Twitter. Alex Nowrasteh, immigration policy analyst at Cato Institute quotes Ronald Raegan saying the primary upside of America’s birthright citizenship is that unlike in Europe, there’s no large “legal underclass of people who have little stake in their countries of birth”. While these opinions will continue to pour out as long as the fear remains that Trump will put pen to paper, it’s also true that staking out the most extreme positions is how Trump won elections in 2016, and he is simply returning to the strategy of winning by portraying politics like blood sport. Although the birthright citizenship headline is being freshly roasted, the thinking (within the White House) that has led to this is anything but new. Trump's firebrand aide on all immigration issues Stephen Miller has for long pointed in this general direction. Multiple background briefings at the White House have suggested that restrictive immigration cuts (without calling it that) are top priority for the Trump administration. From around the time of the 2016 campaign, the central idea that the Trump team has peddled is that immigrants (without clarity on illegal or legal) are milking public resources. The ambiguity helps Republicans distance themselves as needed and the imagery of others prospering works to rile the base. The 2016 Trump vote was an act of aggression, a need to protect white identity at a time of profound demographic shifts that began in the 1960s. The threat to repeal birthright citizenship speaks to the same voter base that got all fired up in 2016. If it doesn't work this time, it's Trump's test case to see what sticks for his 2020 run. For those on the receiving end, each of these actions are chilling but for the braintrust, these are just bricks in another wall that's being built faster than the real one promised along America's border. Sample the latest from the bully pulpit and a cartoonist's pushback:

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Updated Date: Nov 01, 2018 02:24:49 IST

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