The Daily Signal - #329: The History of Birthright Citizenship in the US

Episode Date: October 31, 2018

The Supreme Court has never actually ruled on whether the children of illegal immigrants born here are citizens or not. Amy Swearer, a legal analyst at The Heritage Foundation, joins us on the podcast to share that fact and more about the history of birthright citizenship in the US, and whether it's appropriate for President Trump to use an executive order to declare that children of illegal immigrants born here aren't citizens. Plus: We talk about the best Halloween movies.We also cover these stories:--President Trump is looking to sign an executive order that would get rid of birthright citizenship.--House Speaker Paul Ryan says, "You cannot end birthright citizenship with an executive order."--Whitey Bulger, the notorious Boston mobster, was pronounced dead Tuesday at a federal prison in West Virginia, one day after being transferred there.The Daily Signal podcast is available on Ricochet, iTunes, SoundCloud, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

It's Canadian Tire's Black Friday sale. With the lowest prices of the year. Hello, can we go? Limbo again. Shop the Black Friday sale at Canadian Tire and save up to 60%. November 27th to December 7th. Conditions apply. Details online.

This is the Daily Signal podcast for Wednesday, October 31st. I'm Kate Trinko. And I'm Daniel Davis. President Trump stunned the media this week when he said he would sign an executive order to end birthright citizenship. That issue touches on immigration, the Constitution, and the VIII. very basics of what it means to be an American. Today we'll sit down with Amy Swearer of the Heritage Foundation to unpack this contentious issue. Plus, it's Halloween and that means horror movies.

We'll be joined by some friends to debate the best and worst Halloween films. But first, we'll cover a few of the top headlines. President Donald Trump is looking to sign an executive order that would get rid of birthright citizenship. Here's what he told Axios. On immigration, some legal scholars believe you get rid of birthright citizenship without changing the Constitution. An executive order. Exactly. Have you thought about that? Yes.

Tell me more. It was always told to me that you needed a constitutional amendment. Fourth Amendment. You don't. You don't. Number one. Number one, you don't need that. I mean, that's in dispute.

That's very much in dispute. Well, you can definitely do it with an act of Congress, but now they're saying I can do it just with an executive order. Now, how ridiculous. We're the only country in the world where a person comes in, has a baby and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It's ridiculous. It's ridiculous. And it has to end. Have you talked about that with counsel? Yeah, I have. So we're in the process? It's in the process. It'll happen.

And on this issue, once again, Senator Lindsay Graham is coming out on the side of President Trump. Shortly after the president's interview went public, the senator from South Carolina announced he would introduce a bill to end birthright citizenship. He also took to Twitter saying, quote, finally a president willing to take on this absurd policy of birthright citizenship, I've always supported comprehensive immigration reform, and at the same time, the elimination of birthright citizenship. End quote.

He went on to say that birthright citizenship is a magnet for illegal immigration out of the mainstream of the developed world and needs to come to an end. Well, meanwhile, House Speaker Paul Ryan is rejected, the proposal. In a radio interview Tuesday, he said, quote, you obviously cannot do that. You cannot end birthright citizenship with an executive order. We didn't like it when Obama

tried changing immigration laws via executive action, and obviously as conservatives, we believe in the Constitution. UN ambassador Nikki Haley is fed up with the response to Pittsburgh. She tweeted, quote, I have struggled with what happened in Pittsburgh because it's so

similar to what happened in Charleston. The country was very racial divided at the time. We didn't once blame President Obama. We focused solely on the lives lost in their families. Have some respect for these families and stop the blame, end quote. In 2015, of course, a shooter killed nine black men and women in a church in Charleston, South Carolina. Haley was governor of the state at the time. Well, President Trump is threatening new rounds of tariffs against China if he and President Xi are unable to reach an agreement on trade terms. Here's what he said in a recent Fox News interview with Laura Ingram.

You see we're going to win that one. It's going to happen. We're going to win that one. How confident are you about the deal? I'd like to make a deal right now. I just say they're not ready. $250 billion, additional tariffs if that deal doesn't go through. $250 billion and have $267 billion waiting to go if we can't make a deal. Are you optimistic? Scale of one to tens. I think that we will make a great deal with China, and it has to be great because they've drained our country. We have really helped rebuild China.

They've been taken out an average of $500 billion, billion a year for many years. Not going to happen anymore. Is someone trying to set up special counsel Robert Mueller? The Atlantic reports that the special counsel office confirmed they had been told by journalists. There is a woman who is not named who claims she was offered $20,000 to make up a sexual misconduct story about Mueller who she had once worked with. Now the FBI is involved. Quote, when we learned last week of allegations that women were offered money to make false claims about the special counsel, we immediately referred the matter to the FBI for investigation, said Peter Carr, a spokesman for the special counsel to the Atlantic.

Whitey Bulger, the notorious Boston mobster, was pronounced dead Tuesday morning at a federal prison in West Virginia, just one day after being transferred there. The FBI has opened an investigation into what happened, but according to the Boston station, WCVB, sources said that Bulger was killed. Bulger was 89 years old and serving a life sentence. In 2013, he was convicted of 11 murders stretching from Massachusetts to Oklahoma to Florida. Pittsburgh Penguins, a hockey team, are looking to help out their community, reeling from the shooting at the Tree of Life Synagogue. The team is wearing patches that state, stronger than hate, on their jersey, when they face off against the New York Islanders.

They'll auction off the jerseys to raise money for Jewish Federation of Greater Pittsburgh as well as for a fun supporting police officers who were wounded in the shooting. Well, up next, we'll talk to Amy Swearer about birthright citizenship. Do conversations about the Supreme Court leave you scratching your head?

Then subscribe to Scotus 101, a podcast breaking down the cases, personalities, and gossip at the Supreme Court. Well, as we mentioned earlier, President Trump announced, perhaps unexpectedly, that he was preparing an executive order that would end birthright citizenship. Here to discuss the issue is Amy Swearer. She's a legal policy analyst at the Heritage Foundation and a favorite on this podcast. Amy, thanks for being back on.

It's always a pleasure to be with you guys. So, you know, we just heard President Trump's position. But first, can you tell us exactly what the law is right now and what the courts have said about birthright citizenship? Well, the answer to that is it's not clear. and they haven't said a whole lot in the last 100 years. Great. Right. So really what this debate comes down to is a question of one phrase in the 14th Amendment and what it means.

So 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. So when you look at that, there are two factors in there that lead to citizenship. one, that a person is born in the United States, or naturalized, but for purposes of birthright citizenship, born in the United States, and subject to the jurisdiction thereof. So the question then becomes, what does it mean to be subject to the jurisdiction of the United States? And for especially the last 50, 60, 70 years, as we've seen an increase in laws regarding citizenship and immigration, we've essentially treated this.

to saying all persons born in the United States with very, very limited exceptions like the children of ambassadors. Those are United States citizens. We haven't really had this discussion over, you know, what does it mean to be subject to the jurisdiction thereof? But there is a legitimate and fairly well-fleshed-out academic argument that says that the 14th Amendment does not mandate what we would call universal birthright citizenship. That phrase, subject to the jurisdiction thereof actually has a very particular meaning and that Congress intended to limit birthright citizenship to those individuals who owed their allegiance entirely to the United States and who were subject to a complete jurisdiction. So this would exclude children of individuals

who were just passing through, who were subject to foreign powers, in this case, the children of people who were illegally residing in the United States. Right. And, And I was reading 2011, which was very long ago, column by your colleague, Hans von Spakoski, where I think he had argued that one of the things that he felt supported that argument was the fact that it took an act of Congress to make all Native American citizens. And that was after the 14th Amendment, even though they were born in the United States. But there's been quite a complicated legal history regarding this. Could you maybe unpack some of the more pivotal moments in that?

Sure. So there are really two big cases when we talk about citizenship. The first was Elk v. Wilkins, which was the one that you were referring to. So it was the early 1890s, so within 20, 25 years of when the 14th Amendment was passed. And that was the question in that case. Elk was a Native American who was born on an Indian reservation, who left the reservation, abandoned ties with the tribe. and he tries to vote in a state election and the state says you're not a citizen, you can't vote in this election. And so elk sues. And he says, look, I'm not subject to the jurisdiction of my tribe. I've cut my ties with them. I'm a U.S. citizen.

And what the court says is that at the time of Elk's birth, he was not subject to the complete jurisdiction of the United States, that Congress intended. with the 14th Amendment with this little jurisdictional clause to entirely exclude Native Americans who were born in the geographical jurisdiction of the United States, but who were subject to their tribal sovereignty, who were not subject to an owing complete allegiance to the United States, and that that was not something he could then later gain simply by leaving the reservation and leaving those tribal ties behind. Then what you have a fears after that is, a case called Wong Kim Ark, United States v. Wang Kim Ark in 1898. And this is a case... Happening era, apparently, in 1890s. Right. And then nothing else since then. So this is the case that

most people are making legal arguments for universal birthright citizenship. They will point to this case, which had to do with the government had denied reentry to a U.S.-born child of Chinese foreign nationals. And these parents had been living in the United States. They were permanent, residents. They were living legally in the United States. And this, their child who was now an adult, had also been living legally in the United States, left, went to China temporarily to visit, tries to come back. The U.S. says, you're not a citizen. We're not allowing in any more immigrants. Too bad. And so this case, the United States, sorry, the Supreme Court says, no, the U.S. born children of legally residing, permanently residing, permanently resists.

foreign nationals, those are U.S. citizens. But they didn't expand beyond that. So it doesn't answer the question of, okay, well, what about the U.S. born children of individuals who are not legally residing or who are not long-term permanent resident aliens? And that has actually not been answered. It has, for a while at least in terms of executive policy in the way that the government has, has released passports and acted. It has been presumed, but it hasn't been settled legally. And there is a very genuine discussion amongst scholars as to whether or not that is something

mandated. It is certainly not clarified by the Supreme Court, and Congress has not clarified it either. So if the president signs this executive order, and again, we have not seen it, we don't know what would be in it. But assuming that it does in birthright and citizenship, obviously this would be a court battle. It would be set up for that. Does he have a pretty clear path to maybe some of the higher courts or even the Supreme Court to finally have this argument? I mean, clearly that this is something that is going to be played out in courts. Again, you know, as you said, it's hard. We don't have the executive order in front of us.

we don't know what he's intending to do with it, what the scope is, what it will say. And so a lot of that legal battle is going to depend entirely on what the executive order actually purports to do. So that's something we'll have to wait and see, but it will almost certainly be played out at the highest levels. And of course, Senator Lindsey Graham has announced that he intends to pursue legislation on this matter. Do you have any thoughts about whether this is more appropriate for, again, we don't know a lot of the details, but executive order or legislative action? It's a hard question to say, which is more appropriate. Certainly the different areas of government have their different spheres of power. It is well within the president's prerogative to instruct executive agencies to act according to a good faith interpretation of the law, which in this case,

has not been clarified by Congress. There have been in the past instances where bills have been proposed in Congress to clarify this issue that it hasn't been passed. So essentially Congress since 1898 has not taken upon itself to clarify the issue with regard to how the 14th Amendment applies to the U.S. born children of illegal aliens or temporarily residing foreign nationals. It's more a question of is what the president is trying to do, is that within his purview? You know, within what he can do constitutionally and is what Lindsey Graham, whatever bill he

proposes, is that within the purview of Congress? And again, because we don't have a bill in front of us, because we don't have an executive order in front of us, it's hard to say. But the executive branch certainly does have a role to play in good faith interpretations of what the Constitution means in these sort of unclear, messy circumstances. You know, you're never going to make it immediate if you keep insisting on knowing all the facts before you weigh in. Darn those facts. You know, there is some debating question, as you well know, over whether getting rid of

birthright citizenship would, whether that would only apply to illegal immigrants or if that would apply to all of the babies who are born here to legal immigrants or non-citizens. Any thoughts on what the default application would be? you know, if we just got rid of birthright citizenship, you know, would those who are born here to like green card holders, would they receive citizenship? Or is that kind of up for grabs and just dependent on, you know, legislation? Well, again, that would depend on what the executive order purports to do, what Senator Graham's bill purports to do. but at the least we know from the Supreme Court in Wang Kim Ark that the U.S. born children of those foreign nationals who are here legally, who are here in a permanent resident status, that those children are U.S. citizens according to the Supreme Court.

Everything else, I'll say, I mean, you can make arguments, and people do make arguments either way as to where that line might be drawn. But the only legal line from the Supreme Court right now is the U.S. born children of permanently domiciled, legally present foreign nationals. Okay. Well, thank you for joining us today, Amy. Thank you so much for having me. Next up, we're going to discuss the movies and Halloween. I'm Rob Blewey, editor-in-chief of The Daily Signal.

And I'm Ginny Maltabano. Each weekday, the Daily Signal delivers the Morning Bell email direct to your inbox. We created the Morning Bell to be your one-stop source for credible news reporting and insightful commentary on the issues that are shaping the agenda. You can subscribe today. and get it delivered to your inbox each weekday morning. Sign up now at daily signal.com. Just click on the connect button at the top of the page and subscribe today.

Well, it's Halloween, and we're going to discuss Halloween movies. Joining us today is Michael Gooden, our video guru, and two new guests of the podcast, Matt Atwood and Laura Falcon, who are in the communications team at the Heritage Foundation. But they all love Halloween movies, scary movies, I don't know, all these things I don't get, so I'm going to let them take it from here. About a month ago when I started getting excited about Halloween,

and I tried to voice my enthusiasm around the office, and I was met with a deathly silence. Apparently, one of the things that the Heritage Foundation, at least on the sixth floor, is not equipped with, outside of a wonderful studio we have. We do not have people who are genuinely enthusiastic and with good taste about Halloween movies. So what was a man to do?

I started looking around, and I started asking around the office and started seeing if I could find people with like-minded curiosities towards my favorite movies of the year. And I found Matt Atwood and I found Laura Falcon. And we are here to talk about Halloween movies and talk about the ones that we love, the ones that we recommend, and everything in between, and maybe some new things in Halloween news.

So what do you guys think? What I'd be psyched about Halloween? Is there some movies you have to watch every year? To watch every year? You got to watch the classics every year. but I don't know I don't find myself watching Halloween movies around Halloween

I mean it depends on what's out I also don't have a TV though so that's a problem I think that would be a number one problem when we're talking about Halloween movies If it's on Netflix we're good Just pointing out the obvious here But it's very hard to watch a movie without a TV Some would say difficult

That's why I stick with Netflix I'm much of a pretty big fan of watching different movies every year I'm not actually not a huge fan of scary movies So I usually like to just scare myself once with a good movie and just kind of keep the rotation going with new stuff. But you can never go wrong with the classics, of course. Okay, you guys, sorry. I know I said I wasn't going to interrupt.

But now I ask, what are these Halloween classics? I think it varies from person to person. Like Halloween. I mean, the ones that you're going to see on TV come October. So Halloween carry. How do you know where you're? Because I owned it. I mean, I don't have a TV as of like four months ago, essentially.

But, I mean, my whole life. You know, you turn on, what is it, TBS, whatever, and you have Halloween, AMC, right, Carrie. There's so many times you can watch Harry Potter, though. I won't say that much. My favorite has got to be Halloween, the aptly named one of the greatest horror movies, the pioneer of a slasher, Phil, Flick, if you look at it. But the one movie I got to watch every year, it's a family tradition of ours, is Hocus Pocus. It is a 1993 Bed Midler musical, which is not what you usually think of when you hear the

term Halloween movie, but it is one that is near and dear to our hearts. So do you guys have any ones that you have to watch it and check that box before the year is out? I agree with what Matt said that you, I like to watch a movie once, maybe a couple of times, but again, it's never around Halloween. I don't know what it is with me not being timely with my movies. But my all-time favorite is the others, which I think is super underrated. And I don't think anybody really talks about it enough because,

I don't know, it's just not that popular, but I think it totally changed just the perspective of horror movies. And I guess are we, are we spoiling these movies? The movie was made in 2001, I think. Yeah, I know, but if I don't want to, I don't want to totally ruin it for something. You've had 17 years, by the way. All bets are off. No, but the perspective in the end is actually from the ghosts and not from from the people who you think are being haunted by ghosts and it was just such a new perspective for horror movies.

And it just, I remember when I first watched it, which was probably around the time it came out. And I was just blown away. So I like when you can take a classic idea, but twist it and give us something different because I appreciate the twists at the end. It's a beautifully shot film. And I especially love the twist at the end. It was a few years after, actually two years after the Sixth Sense, which is famously one

of the other horror movies that with a crazy twist at the end. But I found a lot of similarities between the others and the way it was shot and various elements of that genre in a series that I have been talking about at link with both of you guys. It's something on Netflix, because you don't have a TV. It's called The Haunting of Hillhouse. And it's something that kind of arrested all of our attentions. And I was wondering if you guys had any thoughts or recommendations about this highly not suitable for kids. Yes. Television show.

Caution to those kids that are interested in watching it. Make sure your parents approve first. However, I will say that the parents should approve because it is a great series. Haunting of Hill House takes you through a story of the Crane family back and forth from the, I'm guessing it's around the early 90s, late 80s somewhere in there until present day. And the back and forth trying to figure out who's haunting who, which ghosts are friendly, which you're not. The whole time, you're just on your toes and some pretty good scares along the way as well too.

So if you're into suspense and in actual absolutely just terrifying yourself during Halloween, I highly recommend it. Don't watch it at night. I made that mistake. And I definitely just found myself walking around my apartment very carefully and just running to the light switch to turn every single light on. Just because I'm expecting, you know, a random ghost to be chilling out in the background like it does. so frequently in all of the episodes, which I have, if I'm being completely honest, I kind of got annoyed by it at the end because these ghosts were statues. They literally just stood there.

And it's like, is that a statue? Because the house itself was so old and had these beautiful statues in different corners and different rooms. It made you think twice until you saw these like sunken in eyes and you're like, oh, yeah, that's not a statue. That's a ghost. Okay. They painted a lethargic picture on the... Michael, I just have to jump in here and rain a little bit on this. on this horror party. So as someone who is not a fan of horror,

in fact, horror actually scares me. Can you describe the benefit in entertainment, the benefit of horror movie that when you get up from a horror movie, are you like better off in your mind and in your soul? Do you just feel better? Because I never do. I would ask your question with a question. I hate to deflect on that.

But what are your favorite genre? movies. What is your favorite? I like, I mean, I like dramas. I like thrillers. My favorite movie is the Shawshank Redemption. I love like old films like The Godfather, action films like Jason Bourne, that kind of thing. The Godfather, a movie mostly about the rise and fall of a Italian family beset by the mafia in 1930s. Now, when you watch The Godfather, which is one of my all-time favorite films, Francis Ford-Coblo, is what is the genius work of art.

What do you get up and take away from that? Man, I, so I get up and leave that it's kind of a tragic story, frankly. And it's ironic story because you almost root for the mafia throughout the whole movie because you see the characters and you can relate to them in certain ways. I mean, when I get up, it's just sort of a, it's like a beautiful tragedy, I'd say. But I'm honestly asking genuinely. Yeah, no, I feel the same. way about certain movies, certain horror films. I like the thrill of watching them. I like the

feeling of apprehension, the anxiety, the, I mean, in the haunting of Hillhouse, it is absolutely, the common threat of it is just a crackling family dynamic. That has very little to do with outside of the ghosts therein. It was really, not to sound too cliche, but the ghosts of the family and the spirits that they were all dealing with inside themselves was really what my favorite part of that series was. So there is more to, there's more to horror movies than just cheap scares. I think that it can make you kind of appreciate things

or look at things in a different way. And obviously, they're thrilling and they're a little bit more fun. But what do you guys think? I think that's, The Haunting of Hill House really separates itself from other scary movies because it was a miniseries. There was 10 episodes. So each one of the episodes is about an hour long

and you really get a chance to dive into each character. and I think literally for the first seven episodes, each episode focuses on one individual member of the family, again going back and forth between the present and the past. So you really get emotionally vested in each character and finding out the outcome of the end of the series. Yeah, no, I mean, just to echo what Michael was saying, I kind of look at horror movies, kind of like a roller coaster in a lot of ways. I think there is that adrenaline rush that you get, anticipating, anticipating, but I think there's just a beautiful way to shoot horror movies that's just unlike anything that you will get in other genres. One of my favorite scenes was the funeral home scene when you have the entire family all in one space and you are literally filming one set, one full take and the camera's just circling around and you are seeing just the trauma that each of these characters has been feeling over the past however many years. that have passed. And it has nothing to do with actual cheap horror,

has more to do with the inner demons that everybody is facing from when they left that, well, from when they moved into the house to that moment in time. So that's the focus. It's not the scary stuff. I couldn't agree more. It's a wonderful series. I think as we're getting the rapid up sign from our producers here,

I think we should go around the table one last time and kind of describe to our audience what, if you could, think of one Halloween movie or horror film that you could recommend to, to indulge in on this Halloween night. I mean, I think I've already recommended it in this podcast, but haunting of Hillhouse is just great. If you have 10 hours to spare on Halloween night,

I absolutely recommend you sit down in front of your TV for 10 hours and just watch it all the way through. I'm going to go with the 6th Sense. I don't think you can go wrong with that. I'm going to go with Boo, Medea's Halloween. Thank you all very much for your time on this podcast today, and I appreciate it. We turn you back to Katrina Trinco and the rest of the Daily Signal game.

Well, we're going to leave it right there for today, but thanks so much for listening to the Daily Signal podcast, brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google, Play, or SoundCloud. And if you have time after your 10 hours on Halloween watching a Netflix special, please leave us a review or a rating on iTunes to give us any feedback. We'll see you again tomorrow. You've been listening to the Daily Signal podcast, executive produced by Kate Trinko and Daniel Davis, sound design by Michael Gooden, Lauren Evans, and and Thalia Rampersad. For more information, visitdailysignal.com.