From WXXI news.

This is Connections.

I'm Evan Dawson.

Our connection this hour was made on the final day of the recent term for the Supreme Court of the United States of America.

The justices handed down a pile of decisions on the final day, including the decision on the matter of birthright citizenship.

Here's how The New York Times characterized it.

Quote.

The Supreme Court issued a majority opinion with a clear message.

Birthright citizenship is a right guaranteed by the 14th amendment of the Constitution.

That decision on Tuesday, striking down President Trump's executive order limiting birthright citizenship, reaffirmed decades of legal thought and practice.

But some civil rights advocates, lawyers and legal scholars were surprised that four justices Clarence Thomas, Brett Kavanaugh, Samuel Alito and Neil Gorsuch said that they did not see birthright citizenship as a constitutional right for certain groups.

In the end, birthright citizenship as a constitutional right survived by one vote.

The latest sign of how far the conservative legal movement has shifted on the issue, and Justice Gorsuch in particular, sought to draw a distinction between babies born to parents who, as he puts it, are just clearly visiting and babies born to parents who are establishing a domicile, a place to live in the United States.

Many conservatives responded to the ruling with anger, promising new efforts to end birthright citizenship.

Some spoke of a constitutional amendment or other legal maneuvers, but for now, this decision seems to cement birthright citizenship as the law of the land.

You can comment on that this hour.

We're going to take your feedback on our the various platforms if you want to do that.

And here to discuss the implications in studio.

Let me welcome back to the program, Richard Dollinger.

Rick is a retired New York Court of Claims judge, and also written about a number of cases related to this issue.

It's nice to have you back here.

Thanks for having me, Ivan.

Lucretia Knapp is an immigration attorney at Mancuso Brighton.

Nice.

Brightman, I should say.

Nice to have I got.

Mancuso was the hard.

You know, you got the right one, right?

Nice to have you back here.

Thank you for being here.

Thanks for having me.

So I want to start by asking you both if this decision was closer than you expected.

Here's what Quentin Jurassic, who is a lawyer and legal analyst for the Atlantic, writes this morning, quote, I was not surprised that the court struck down Donald Trump's executive order ending birthright citizenship for the children of some immigrants.

What shocked me is that the ruling was, depending on how you count it, six three.

And the question of whether the executive order could stand, or five four.

And the question of whether the 14th amendment requires a broad understanding of birthright citizenship.

Very few people had thought that it would be anywhere near that close.

I certainly did not myself and quote Lucretia, what do you think?

Well, I you know, if it wasn't for being here last time and talking about birthright citizenship, I think I would have been more surprised.

But I do remember Tony Griffin, who was here to talk about this, and she was our constitutional law expert in this area.

She did say that she thought the court could just touch on the statute, and that's what Kavanaugh did in his concurring opinion.

And so we talked about this a little bit earlier.

I think that when I read that, I was like, oh, so someone did have an idea that this could be the case.

I did if I had just been looking at the lower court decisions before this, I would have been very surprised if that was the only thing I was looking at, because the other lower courts that have looked at the executive order had called this executive order blatantly unconstitutional.

There was no question.

And so the fact that we did have three dissents, was surprising from that perspective.

So let me just ask you then.

Yeah, in the context of what you're describing with the lower courts.

Listeners might hear that and go yeah, but were those judges in the lower courts leaning left or leaning right?

And I think what you're saying and I think what I have read is everywhere this has been examined up until the Supreme Court.

It didn't matter what ostensible lean there was in a judge or a courtroom.

That's exactly right.

Yeah.

I think this, there were multiple decisions from from judges that were all over, appointed by different presidents.

And the conclusion was always the same.

And that's why it went to the Supreme Court.

Because it was stopped.

The executive order was stopped almost immediately by a number of courts.

Rick Dellinger, any surprise here?

The biggest surprise for me is an unmasking of the conservative movement in the United States Supreme Court for the last 75 years.

I had a bunch of that time.

I was a lawyer.

All I ever heard from my friends on the right was strict construction of the Constitution do not vary the terms.

Stick with the wording.

They meant what they said and don't push it one direction or the other.

If you read the 14th amendment, there is absolutely no question that it says if you're born in the United States, you're a citizen.

And for those judges, Thomas and Alito and Gorsuch, to go wandering around in history looking for some way to undercut the clear declaration of the House, the Senate, and three quarters of the states in the Union who all agreed that it meant if you were born here, you're a citizen for the three of them to go wandering around in some discussion about medieval England or feudalism, or what it meant.

Looking for the answer.

When the the people of this country not just the Senate, not just the House, but three quarters of the legislatures of the states in the Union agreed.

That's what it meant.

And quite frankly, why those three guys said we're actually smarter than all those people.

In 1868, we actually know more than they did is a bunch of nonsense in unmasks the conservative argument of strict construction.

If they were strict constructionist, they would have voted with Justice Roberts.

It was just no issue.

Well, we're going to I'm going to read a little bit of what Justice Gorsuch said about the idea of being domiciled coming up here.

But before we do that to you.

Just so you know, before you even get there.

Sure.

Does that word appear in the 14th amendment?

Well, okay.

Does it does it here.

The point you're making.

Does it doesn't appear in the debate.

You don't have to interrupt me.

I'm just reading what they want to interrogate you.

I've got a bigger interrogation because I'm going to ask you.

I'm going to explain to you why the subject to jurisdiction clauses in that 14th amendment.

Okay, but but first, let me read a bit of analysis that I think dovetails with what Rick is talking about.

So Judge Dellinger is saying that you can't say that you're a strict constructionist and then pick and choose where you are a strict constructionist, correct?

Isaac Saul is one of my one of the journalists.

I respect most in this country right now.

His journalistic outfit is called The Tangle, and they seek every day to put together a series of reporting on the issues of the day and actually take the best arguments from both major sides, and try to do that in a way that both sides would think is fair.

He is a very fair person.

Here's what he writes about Alito in particular with alito's language.

Isaacson says Justice Alito's obscene inconsistencies as a justice are so frustrating.

In the asylum case, Alito used much of his opinion to describe the the quote plain English meaning of the words arrives in arguing that when someone arrives in the United States, it means they are in the United States, not at a port of entry standing in Mexico.

Therefore, the Trump administration did not have to grant asylum to migrants until they arrived in the United States, because that's what the language said.

That's what the plain English was, and thus they could block them from entering to prevent asylum claims.

And I said, as a journalist, I agreed with this rationale because it makes sense on the plain text.

I'm still reading Isaac Saul here.

He then says, in the late arriving mail ballot case, Alito made his plain English argument again that the meaning of Election Day was just that Election day, only plain English.

Therefore, Alito concluded election should not go on for weeks or months.

This felt like a stretch to me, Saul says, but was consistent with the asylum ruling.

So what does Alito say it means when the 14th amendment says anyone born or naturalized in the United States is a citizen?

What is the plain English meaning of that phrase to the justice?

Well, it might be something else.

No one might consider this answer to be a layup for such a staunch textualist.

Yet instead, Alito focuses on careful analysis of the text of the 14th Amendment and the process that led to its adoption, and argues that the 14th Amendment confers citizenship on only those children who at birth owe allegiance solely to this country.

Words that appear exactly nowhere in the actual 14th amendment.

I mean, I don't know.

I give these brilliant justices a lot of deference and rarely accused them of motivated reasoning.

But with Alito, this seems to be a bit much.

No, that's Isaac Saul.

And analyzing this morning, is that where where you're going with the inconsistency you see?

Absolutely.

You cannot be a strict constructionist.

I have been lectured by my friends who are conservatives or Republicans about how the United States Supreme Court got lost because all of a sudden they were interpreting things like due process and giving it a broad reading.

But understand from my point of view that broad reading for a phrase like due process or the rights of free speech, those, well, that language was interpreted to give broader rights to Americans, to give them the right against search and seizure, against the constitutional rights that are now at the heart of our republic.

And by the way, the very constitutional rights that the president of the United States took advantage of when he was indicted for a crime, he took advantage of the rights.

We have those rights.

We have them because the Supreme Court of the United States broadly interpreted the concept of rights to create protections for people in this case.

This is a constitutional command which specifically said, you get citizenship by virtue of where you are born.

It's that simple.

And in this instance, the conservative movement said it can't really mean that because that encourages women to come here and have babies.

That's I think Justice Roberts had a great line in the oral argument when the lawyer made the comment, it's a different time.

You know, we've got to the tourism birth movement.

And Justice Roberts looked at him and said, it's the same constitution.

Period.

And that's what's been unmasked.

Is that all those allegations against the politics of the Liberal Court by the conservatives be a strict constructionist.

It turns out they're just as political and they're not.

So I gotta get back to Chris Barry.

But no, but but what I think, correct me if I'm wrong, here's how I would paraphrase that part of what you're saying when Scalia when Justice Scalia, the late justice, said the Constitution is not a living document, it is dead, dead, dead.

And we need to interpret it as it in its plain English, as Alito would say.

If that is the case, you can't look at this and say, well, look, it's a different time.

And they they wouldn't have known this.

But now we're going to have to figure out what they might have thought.

A Scalia himself might have said, no, it's a dead, dead, dead document.

It's not a living document.

But but one thing, it's a dead document.

But in order to trace why what it means, you go back to what people were talking about at the time it was passed.

The people who actually voted for it, the states that ratified it.

That's how you find out what it means.

And the congressional debates all point to the conclusion that if you're born in the United States, you're a citizen, period.

Well, I fit okay.

I wanted to touch on, judge Dellinger talked about, a birth tourism in the United States.

Yes.

So we already have.

And I printed it out just for this.

So the Department of States has a guidance document called the Foreign Affairs Manual, and in it, they already have a rule.

So this is from the nine Foreign Affairs manual for 2.2, for all the people who want to look it up.

Travel to give birth in the United States, visiting temporarily for pleasure does not include travel for the primary purpose of obtaining U.S.

citizenship for a child by giving birth in the United States.

And so the government already has a tool to stop people from coming into the United States if they think that the primary purpose is to get citizenship for their child.

Well, based on that point there, yeah, I think Stephen Miller might be surprised because the advisor to the president was on Fox News last night.

He was talking to Jesse Waters about his anger over this decision or what a betrayal it was by the court.

And what is going to happen next, what needs to happen next?

I want to listen to what he said.

I'm here for a little bit and then go home.

But if you have birthright citizenship, it means if a person comes here nine months pregnant to go look around at some things in a couple of weeks, that is the mother of a lifetime American citizen and a direct line into American cash and welfare for the rest of that child.

It's a miller.

So you have to.

You have to.

We banned women from America.

We banning foreign pregnant women.

Well, what I'm saying, Jesse, is that you have to now think very carefully about who you let into your country, even on a temporary basis, because the possibility, as you said, for birth tourism, right there is that people come here just to have babies on American soil, and that baby gets to be a citizen for life.

So you have mothers that come in fully pregnant and have a baby, go home and get that baby gets Medicaid and that baby gets welfare and that baby gets cash assistance.

I can send you to leave the baby with, you know, a cousin, a relative, whatever, and then send welfare checks back home.

You can support a whole family in the third world.

So yes, you can't have the kinds of immigration programs other countries have when you can just have a baby here.

And now that child is an American citizen.

So there's a lot of things we're gonna have to take a hard look at.

Jesse.

Yeah, they can even get Trump account.

Okay, so, Lucretia, I'll start with you first here.

He's saying the Trump administration will now take a hard look at whether there should be a law saying that if you are pregnant and you're not a citizen of the United States, you cannot come here for any reason.

So, I mean, like I said, we already have something like that, that the Department of State looks at when they are evaluating people who are applying for visitor visas, they can look at someone or ask questions that would, you know, lead to them thinking, well, this person is only coming to the US to give birth.

Now, mind you, there are legitimate reasons to come to the U.S.

when you're pregnant.

Like if you have a complicated pregnancy and the specialist you need is in the United States, that is a legitimate reason to come to the United States as a visitor, because we do have an excellent health care system, right, with great doctors, lots of specialists.

So that could be a reason to come to the United States.

But I mean, I guess I have a less bleak view of immigration if we're kind of thinking about, people's opinions and how they look at this.

I was talking to Judge Dellinger earlier about the, good benefits of birthright citizenship.

So if anyone's a World Cup fan here, you know, one of our star players is a unintended consequence of birthright citizenship.

His mom came here when she was pregnant to visit family.

She actually tried to leave the U.S., but she was too pregnant.

And the airline wouldn't let her get on the plane to go back to the United Kingdom.

So she gave birth here, and now we have a star player from the UK.

His parents are Nigerian.

That.

Flow back again, I think.

Yeah.

It's Balogun.

Exactly.

Yeah.

Yeah.

I mean, scored.

Two goals in the first match.

Yes, exactly.

Exactly.

So for me, I mean great birthright citizenship, I see it as a as a positive view in some ways.

All right.

Before I get to the judgment.

One other point for you, then.

Here it.

What what enters your mind when you hear people who don't like the way things are going, saying, we're going to look at not letting any pregnant women travel United States.

And a separate thread.

There was discussion about maybe, maybe foreign women should not be allowed here anymore in general, pregnant or not.

Maybe there should be strict new rules and vetting.

Maybe you should have to apply if you're pregnant.

Maybe if you're past five months pregnant, you don't get to come here.

What goes through your mind?

Well, I would say, you know, my primary issue with the executive order was the scope of it, right?

I, I think birthright citizenship is inherently American.

It's been around for or, you know, for more than 100 years.

This is what we've believed is a right of people born in the United States.

But I think my when it comes down to the core of the executive order, the thing that really bothered me about it was it wasn't just that we were taking it away from a distinct group of people.

So say just visitors, right?

So visitors who are here on a visitor visa temporarily, if they give birth here, we're not going to give their children, citizenship.

It was much broader than that.

And I think people forget that it wasn't just people here as visitors, people here undocumented.

I don't agree with any of that anyways, but it's covered people here in lawful status who were here with work authorization on H-1b visas.

Oh, ones.

Anything else that, you know, coming in the right way as people would say, they still weren't eligible for their children to become citizens.

And that created a lot of, downstream effects that would have been problematic.

Judge.

Challenger, what do you hear when you hear Stephen Miller talk about what what the administration needs to do next?

I hear blatant racism and biased.

Obviously, Stephen Miller is not familiar with the Irish experience.

When all those Irish immigrants came over.

And what did they do?

They joined the Union Army to fight for their new country.

They fought on the front lines throughout the American Civil War.

What about all the other immigrants that came here in the wave of early immigration in the last century, that fought for the United States Army in the First World War or the Spanish-American War?

What about all those immigrants who came here and paid Social Security taxes?

What about all the scientists that came from Germany that helped us put a man on the moon?

For someone to stand there and say, I'm telling you, those children will all be dependent solely on the United States.

I would suggest Stephen Miller is reversing the logic.

We are dependent on them, and we have been for the last hundred and 50 years.

Birthright citizenship is what allows us to depend on them and for them to depend on us.

I would simply say this.

You ask the question, maybe we should ban women coming to America, or we should.

There are proposals out there that may get some.

Let me just ask you a very tough question.

Would that include Ivanka Trump and Melania Trump to.

They were both immigrants that came to the United States as women.

Well, just happen to have a connection to a very powerful man.

But I suspect, you know, there could be some.

Well, I would suggest that it's or that, but my point is, we're going to start drawing a line between who someone is at birth, that they're going to be a drain on us instead of a significant contributor.

My Irish relatives would, go back to the wall and, go back to the barricades if someone tried to convince them of that.

Well, it's also just thinking about this from a policy perspective.

I mean, there's been all this talk about our birth rate decline, right?

Yeah.

And we need bodies.

You need bodies for a strong economy.

I mean, this is all over Europe.

Why Germany took in so many immigrants and why their economy was so strong.

At one point it was like ten, 15 years ago.

And we're going to have that same issue if we keep going in this direction.

And so, like Judge Bollinger said, immigrants really help us maintain a strong economy in the United States.

You know, most of the employers that we work with, they are hiring immigrants to fill a labor shortage gap, right, so that they can continue to grow and service their clients and they are better for it.

To be clear, yeah, there are many people who are concerned, and they typically are in the social conservative movement in this country who are concerned about birth rate.

And we're we're below replacement rate.

We're not as low as South Korea, which is going to see a real contraction at Japan or Japan.

Right now, Asian countries are very low.

But we certainly could be looking at, you know, similar declines in population if not for immigration.

Most of the socially conservative movements argue that the best solution to that is not more immigration.

It's more encouragement of the of the existing population within this country to have more children.

But but that's the great irony of of the right wing politics.

Well, we're not going to spend more money on child care.

We don't.

What's the.

Encouragement.

That that would encourage women to have children who are not productive?

We're not going to spend more money on childcare.

We're not going to give, expanded, child tax credits.

We don't want to do that for the people who are struggling to make it, but we like giving more money to extraordinarily wealthy people.

That's the great conundrum that my conservative friends have never figured out how to solve.

You can't encourage a birth rate unless you have strongly favored child care policies.

Extended leave parent parent leaves for, new parents like a year.

And, Something I know about.

Right.

But but you that's the conundrum in all of this.

But the other thing I wanted to do.

And I don't mean to hijack this.

Not.

Okay, here.

We what I wanted to tell you is the big argument under the 14th amendment has been, what is the phrase subject to the jurisdiction of the United States, right.

Right.

That's that's been considered a qualifier for birthright citizenship.

There is a very simple historical explanation for why that's in there.

And for some reason, although John Roberts referenced it, he didn't make it the cornerstone of his opinion, and he should have.

I'm going to ask you this question.

It's a tough one, Evan.

There were tens of thousands of people who were born in the United States, tens of thousands, if not as many as a half a million people that were born in the United States in 1868 who were not subject to the jurisdiction of the United States.

Who were they?

Well, they were people from China.

No, no, they were born in the United States.

Oh, they were born in the US.

They're born.

In India.

Not subject to the Jewish state.

That they had been here forever.

Oh, native Americans.

What were the Native Americans in the United States?

They were sovereign nations.

We had always treated the Indian tribes as sovereign nations.

We knew because we had recognized it in treaties in the first hundred years of our our history, that they were sovereign nations.

The one thing that the 14th amendment could not do, as a matter of politics was make Native Americans citizens.

Why even why couldn't they do that politically?

Think like a politician in the West.

I'm not going to fail your test again here.

You are going to fail it.

If you made the Native American citizens under the 14th amendment, what right did they automatically have voting?

No kidding.

So in a place like Oklahoma, which wasn't even a state, they would suddenly have the right to vote about whether it be a state in places like Wisconsin and Minnesota, which had had problems with the northern Indian tribes, suddenly those populations would show up at the ballot box and say, we do not want to join the United States of America.

They would also have other rights, right?

They would have the right of due process before you took away their property.

Tell that to General Custer and General Sherman and General Sheridan as they wiped out large numbers of Native Americans after the 14th amendment was signed.

The point is, Native Americans were never going to be included in the birthright citizenship theory because they were foreign nationals living in the United States.

In 1868, when the amendment was adopted, the United States considered the whole interior of the country as our land.

Yeah.

It's part of the United States.

If you're a white guy born to a settler in Utah with the Mormons in 18 after 1868, you're a citizen of the United States.

Even though Utah wasn't a state, you're still a citizen of the United States.

If you're in a tribe and you're born in Utah, you cannot be a citizen because you are subject to the jurisdiction of another Nathan Nation, the Cherokee Nation or other nations.

And honestly, even if they hadn't excluded Native Americans from the 14th amendment by the subject to jurisdiction clause right, it would never have been ratified because you needed members in the House and the Senate from the Western states, where the tribes were still a factor.

You needed their votes to pass it, and you needed the votes of the state legislatures, three quarters of them, to adopt it.

It would never have passed political muster if Native Americans were included in the 14th Amendment.

That's why it's not until the 1920s that the Congress actually passes a law that extends citizenship to Native Americans.

It's my point of all this is the explanation for the subject to jurisdiction clause is a purely historical political justification.

And why that wasn't the cornerstone of the court's opinion is beyond me.

You don't have to search very far.

That's the fact.

So let me just ask Lucretia Knapp as an immigration attorney right now to put a bow on this this ruling.

What does this mean for your work?

And what does this mean going forward?

I mean, we're just in the status quo, right?

So what we've always had and I think it just puts, puts everyone's mind at ease, whether you're here lawfully or unlawfully, that your children will be U.S.

citizens.

Right?

It doesn't change anything.

You know, the only issue that we saw is in, Kavanaugh's, opinion where he said, well, we could have just looked at the statute.

Right.

So the 14th amendment is codified into statute.

We didn't have to touch the amendment.

And and that would have been enough.

Right?

But he opens the door to saying, well, Congress can limit this.

Congress can pass another law that limits birthright citizenship.

And so that's the only thing we'll maybe we'll see that, you know, Congress try to pass something like that.

I don't know.

And I'm not an expert on this in any way, but I don't know if immigration is going to have the same, you know, we've been on a roll.

There's been a lot of immigration decisions.

Immigration has been in the news a lot.

But I feel like there are other policy issues that are coming up that maybe are more important in Congress, maybe won't pay attention to it as much.

When you say that people feel this will put their mind at ease, that people feel stress about whether your children will be citizens.

Yeah.

How often do you hear about that?

When this was coming down the pipeline.

Before April, before we knew it was coming out.

It was a regular, a regular call of mine.

Human resources people at, employers, that we work with were emailing us and asking us if we had fliers on it.

People were really anxious.

They were nervous.

Do we know when the decision was going to come out?

And so we work mostly with documented people.

So people who are here in lawful status, they have the ability to work.

But the way that the executive order was written was that if one parent wasn't a lawful permanent resident, I'm oversimplifying it.

Or a U.S.

citizen, even if you were here in lawful status, your children weren't U.S.

citizens.

This was, for one population in particular, extremely problematic.

And this is maybe getting into the weeds a little bit, but in employment based immigration, there are limited numbers of green cards available, and each country has the same number of green cards.

So India gets the same amount of green cards that Luxembourg gets.

So if you can imagine, India uses up its green cards quite a bit because they send a lot of people to the United States, or a lot of Indians come to the United States to work.

And so what happens is, Indian nationals who are going through who are here lawfully, who are applying for a green card, can't actually get the green card for 10 to 15 years.

They're in a wait.

They're in a holding pattern because there's no green cards available to them.

The government says you're eligible for them.

You've done everything you need to do to get it.

We just don't have any for you.

So they wait and wait and wait.

And in the meantime, if their children are born here, they're not U.S.

citizens and they're waiting 15 years.

What happens to that child who was born and raised in the United States has no U.S.

citizenship?

Depending on what country you come from, you may have that other country citizenship.

Maybe not.

And then they age out of the process.

Maybe they're not included in their parents permanent residence or green card applications anymore.

What do what do we do with those children?

And so people were really concerned.

Yeah.

And so I think that this is, one less thing for people to worry about.

Okay.

Before I get judging and here's what we're going to do.

I'm just going to follow up on this point.

After our only break, we've got plenty of feedback from listeners to share on the subject of birthright citizenship.

Talking to Lucretia Knapp, an immigration attorney at Mancuso.

Brightman.

Richard Dellinger is a retired New York Court of Claims judge.

You reference Kavanaugh?

Yeah.

I'm certainly not a legal expert when I read Kavanaugh.

Here's what I see.

I see a justice saying, okay, I'm going to join the majority.

Birthright citizenship is the law of the land.

But if if things have changed enough that Congress or Americans or this administration doesn't like what he would call birth tourism, then you got to legislate your way out of that.

That right now the law of the land is the law of the land.

And I'm not going to as a justice go away from that.

But if you don't like what you're seeing come up with new laws.

That's kind of what he's saying isn't he.

Yeah.

That's exactly what he's saying.

Yeah.

Okay.

And yeah.

He's saying Congress do your job.

Well, sure.

Yeah.

I think that's right.

I think he's saying if you want to ban or eliminate or restrict.

Yeah.

Don't ask us to twist ourselves in a knot.

To come up with motivations for the law or exclusions that aren't there.

You do it.

Yeah.

That's what he's saying.

Yeah.

Okay.

Yeah I think that's exactly what he's saying.

Well yes.

But I. I think that the end result will probably be the same because the, the statute is the almost the exact language, I think the exact language of the 14th amendment.

Okay.

And so I think he says that and he's maybe I don't know what his motivations were behind it, but I think the end result, even if Congress does try to pass something, I think this will end up going to the Supreme Court again and being durable.

Birthright citizenship?

Yes.

Yes.

I do think it's durable.

Okay.

Anything else you want to add it?

I would just say this, Lucrecia and I talked about this to some extent.

The president may look at this as a win.

Yeah.

And the reason is, if it had gone down, if birthright citizenship had been abolished, the consequences to the immigration process and the government would be catastrophic.

It would be years, years well into the next presidency before they could actually work out how to implement it.

We talked the last time we were here, and Lucrecia made the point about how do you prove you're a united States citizen if your birth certificate isn't sufficient?

How would how would we prove this?

The three of us sitting here and the consequence of that becomes an enormous immigration nightmare.

And my point is, Trump floated this balloon.

He wanted to push it as far as he could.

He can now go back to his friends on the right and say, I tried.

I did what I told you I would do.

But the real consequence of this is, we've eliminated an enormous immigration mess that would have occurred for the next 3 or 4 years.

All right, let's take this only break, and we're right back with feedback and more as we talk about this decision on birthright citizenship.

Coming up in our second hour connection, Summer sessions continues.

I bring in my colleague Veronica Volk, and we bring back this recent conversation on the subject of Eagles.

If there are eagles or birds of prey on your property, if they're nesting, what rights do they have?

What rights do you have and what should you do?

What's the right thing to do to protect these animals?

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This is connections I'm having.

Dustin, I want to say something about, you know, the panelists that we have and maybe the panelist that we don't have.

I would love to have Clarence Thomas on this program today.

He declined our invitation.

I would I would love to have, you know, a voice of someone who I think is views things differently.

And we don't I mean, some of the stuff I hear, I think is obviously xenophobic, some of the stuff that I see.

It is not some I mean, like, I think what Justice Gorsuch I'm going to read from his opinion in a second.

He's at least probing interesting questions.

But until the Supreme Court level there, as our guests have described, there wasn't like a deep philosophical debate among left and right in legal circles whether it was courts, lower courts, decisions, attorneys.

I mean, they looked at birthright citizenship and said, like, I can't kind of believe this is going there.

This is the administration is not going to win.

And they didn't win.

May end up closer than some people thought, but they didn't win despite having A63 majority on the court with conservatives.

So we're not trying to stack anything.

One of the reasons I'm reading directly from the conservative justices dissent is I want you to hear it.

I want you to hear what they're saying.

To wit, here is what part of what Justice Thomas writes.

He called the majority's account, quote, not historically accurate.

And Justice Thomas said it adds to the sad history of the 14th Amendment, which was designed and understood to secure equal rights for the freed blacks, but has instead been repurposed for political projects that the Reconstruction Congress did not support.

End quote.

You're shaking your head, Judge Dellinger.

You disagree with Justice Thomas on that point there?

I, I do.

It was designed to codify the common law rule in New York that, comes up interesting enough, the art of the case that I cited, I wrote an article about this four months ago, and I cited a case called Lynch against Clark, which was the decision from, Chancellor Kent in New York when when he decided under the common law that there was a birthright citizenship right here in New York.

It's an 1840s case.

The Supreme Court cited it with approval, and it's proof that that was the common law rule that Congress intended to implement.

Justice Thomas, claims that historically, it's wrong.

He's reading the wrong history books.

I briefly do you want to weigh in on that, too, Lucretia?

Yeah, I so, I don't know if you read, Justice Jackson's, her opinion, and she did touch on some of what was said in the in the dissent.

And she, she picked up on that specifically.

And she said the work product used so in the amendment was language that transcended race and religion and thereby changed and broadened the meaning of freedom for all Americans.

I think the point she was making was it wasn't just if it was just going to be for freed slaves, they would have said that.

And instead, and they could have.

Said that explicitly.

Exactly.

They did not say that explicitly.

Thus it is broader.

Briefly, we.

Know there are other constitutional amendments passed in the reconstruction period that specifically make reference to race.

There are that.

And so if they wanted to get there, they would.

Have amendments they could have done on it here.

Yeah.

That when you when you look at what happened in that reconstruction period described by some as the second founding race, was clearly a factor and part of it, but not in the 14th amendment.

That's what distinguishes it.

Let me grab a phone call from Henk.

Hey, Hank.

Go ahead.

Hi, Evan.

Nice to be on the show.

I had a question for the panel.

Given the emphasis on subject to jurisdiction and given, alito's dissent, is it now illegal to have dual citizenship?

Oh, Lucretia, what happens in immigration?

Attorney?

Is there any concern about dual citizenship now, based on what the justices have said?

I mean, no, no.

So dual citizenship.

Wait a minute.

I mean, go ahead.

I mean, I there's no current concern about it.

But, you know, if the emphasis is on, on on it, subject to the jurisdiction and reading, alito's emphasis on the laws of other countries, Guatemala and others that determine whether somebody is a is a citizen, the United States isn't the implication of the under jurisdiction argument that people cannot have dual citizenship?

No.

No.

And the reason the answer for that is remember, citizenship under the 14th amendment is triggered at birth.

You become a citizen of the United States at birth.

It doesn't stripped, of your citizenship from another country.

And what's interesting about it is most often the dual citizenship is to be resolved by some other country.

It's does will Great Britain understand that?

Right?

But I don't think it eliminates.

I understand.

Go ahead Hank.

I understand that under the 14th amendment is correctly construed.

But, the the arguments, the critics that have made so much about under your jurisdiction, wouldn't their position imply that dual citizenship is not allowed and should not have been, a part of the opinions, of the.

Court?

So, Hank, are you are you saying that they are telegraphing that we might see a challenge to dual citizenship in the future from the conservative right?

No.

I'm telegraphing that there is an inconsistency in the argument by the critics.

Okay.

That you know that if the under the under the, you know, subject to the jurisdiction under that, condition, then there were consequences that, you know, and nobody seems to have addressed, namely, that you cannot be a dual citizen.

Well, I look I appreciate the the point.

And Hank is a very steady person who's been on this program talking about a number of things.

Not pertaining to this particular issue in the past, but it's a very interesting question.

I don't know that.

Is that.

Go ahead.

It is a question.

Maybe I'm just been thinking about it a little bit, that if you are subject to the jurisdiction of the U.S., that you cannot be subject to the jurisdiction of any other country.

That's how I hear it.

Go ahead.

Hank.

I mean, that is the no.

The argument by the critics is that, you know, if you are subject to or is diction of another country, you cannot be, a U.S.

citizen right at birth.

If you are at birth, you are subject to do it right, or your parents are subject to the decision of another country, then you cannot be a citizen.

So, Hank, you're pointing out a flaw in the defense argument.

Is that with this.

Yeah.

Yeah.

Yeah.

That's what it is.

Yeah.

So how do you.

What do you think?

He's making a fair point, Lucrecia.

Yeah, I mean, I do think so.

And it's kind of a it's an interesting, I, I think I see that argument for sure.

Which in, in a modern world and in the world we live in, that's so international.

That would be one of the hardest things to do, right?

Because, I mean, half the people I know are dual nationals.

I don't know how you would work something like that.

Right?

There's very limited countries that have single nationality, that only allow want a single nationality because of that.

But that is a subject for a different day.

I will ask a conservative critic of this decision how they could also then support the idea of dual citizenship, which is an interesting question.

Hank, thank you very much for that.

Let me get, Charles, Charles, has a couple of points in his e-mail.

He says first.

So why did we need the Indian Citizenship Act of 1924?

If the 14th amendment already made everyone born here citizens 56 years earlier?

Well, for the very simple reason that the 14th amendment did not give Native American citizenship because they were subject to the jurisdiction of nations in the United States.

So in 1924, that had to be addressed.

Correct.

We we had to cure the problem of the fact that the 14th amendment excluded from citizenship.

Native Americans for the I, as I explained, for the political reason that all of a sudden Native Americans would have had the right to vote in the territories, and it would have completely upended the the congressional and state plan.

Interestingly enough, just to throw this in there, we might be a very different country if the 14th amendment had included Native Americans.

You know, that's Indian.

They would have showed up to vote.

They would have had constitutional protections.

They didn't have them because they were belligerents.

We were at war with many of these nations.

Now, Charles doesn't like this decision from the court.

And he says hopefully the legislative branch takes up the issue soon.

It's my understanding that some cat named Harry Reid had a good idea back in 1993.

Here's what Charles is referring to.

I look this up.

It was the Stabilization Act of 1993, pushed by Senator Reid, a Democrat from Nevada, which aimed to strip birthright citizenship from the children of undocumented immigrants.

The bill proposed clarifying the 14th amendment so that children born in the U.S.

to mothers who are not U.S.

citizens or lawful permanent residents would not receive automatic citizenship.

Senator Reid argued on the Senate floor that no sane country would offer a reward for being an illegal immigrant.

He claimed it was unreasonable to break U.S.

immigration laws and be rewarded with citizenship and social services for a child.

Now that bill died in committee, and I will tell our Charles that Senator Reid later said he regretted that position and called it one of his biggest mistakes as a senator.

But that bill did not go anywhere.

But to your point, though, Charles, I think that's what Justice Kavanaugh was saying.

This is now out of the court's hands.

Legislatively would be the next place or maybe another executive order, because we don't do legislation anymore in this country.

I'm not trying to snark.

I just don't think we actually do it anymore.

No we don't.

Okay.

So thank you, Charles, for that.

Let me read also, again, trying to be fair here.

I want to read a little bit more of what Justice Gorsuch says about, this is an interesting part of his dissent.

He doesn't outright say that he disagrees with the Trump administration.

On the subject of if an undocumented immigrant has a child, should that child be a citizen?

But here's what he says about domicile and establishing a home.

He says besides addressing temporary visitors, the Trump administration order also denies the benefits of citizenship to children born in this country, to parents who make their permanent home here, but do so in defiance of federal immigration laws.

I wonder, is a child born here to parents who have long chosen to make this nation their permanent home, not a citizen under the 14th amendment solely because his parents presence violates statutory law.

If those parents are not domiciled here, then where are they domiciled?

And if the answer is nowhere, how can we reconcile that conclusion with this court's long standing recognition that every person is domiciled somewhere?

End quote.

That's from Justice Gorsuch.

And he says, essentially, that's for a different day for the court to argue.

He goes on to say, but he does say that, in his view, the most important question is, is a person domiciled here?

And that should be the determining factor.

So in other words, if a pregnant woman comes from another country, visits here, leaves here, she's not domiciled here, she's domiciled elsewhere.

That child should be a citizen elsewhere.

Gorsuch, you're saying if you are an immigrant here, even if you don't have documentation, but you've been living here for 20 years, you're domiciled here.

Probably he's hinting your children should be domiciled here.

They should be citizens.

But that's his.

To his view, it's the standard of establishing a domicile.

Let me ask both of you about that.

What do you think, Lucretia?

Yeah.

I mean, I think that I, I do agree with that logically.

And, you know, I was in this in the syllabus of the, majority decision.

They also address domicile.

And they said that, well, their take on it is if Congress intended to limit American citizenship to the children of those domiciled in the United States.

Nothing in the succinct language of the citizenship clause conveyed that design.

And so it's he's looking at the domicile and saying, here's something that, you know, would make me, it sounds like make me think that if someone is here, even without lawful status, they're domiciled.

Right.

But I think the, the majority decision is just broader than that.

They're like, you don't need domicile.

And that's because that's not part of the language.

Exactly.

Right.

So, so even so, judge here, even if Justice Gorsuch is presenting an idea that a good number of people might think is logical.

It's not part of the 14th amendment.

It's explicitly not in there.

Is that what you're saying?

It's very, very simple.

That is a very interesting, perhaps even persuasive political argument.

Do you know where it belongs?

My advice to Neil Gorsuch is very simple.

Resigned from the United States Supreme Court.

Run for the United States Senate or the House of Representatives.

And take that argument into the political process and convince a majority of the House in the Senate to do it.

And that'll be the law.

Subject again to the 14th amendment.

The United States Supreme Court is not a hab, site for a political debate about what Congress intended.

That debate occurs on the floor of Congress in the Senate.

It's it's an interesting political argument.

It has no place in the legal analysis of the 14th amendment.

It's a spin off, but it's it's out of place.

Lucretia, I agree with that.

Yeah, I agree with that.

Okay.

Tom writes in to say that with A63 majority on the court, if the Trump administration can't win this with this majority that they created, you're going to start to see Republicans talking about packing the court.

Now.

That's what Tom says.

I haven't heard that specifically.

I mean, I guess if you look hard enough, you'll find anything on the internet.

But, you know, I don't know.

I mean, the court expansion because you don't get what you want.

I don't, I don't I don't know that that's a good idea for anybody on any side.

By the way, you're shaking your head, Lucretia.

What do you think?

No, I mean, yeah, I think I don't think that that's, something that we should be looking into.

I mean, we and and I'm not sure if you'll get the result you want, because we already have a conservative majority.

Conservative court.

Just because you think someone's going to go the way you want them, because you, you know, you give them that post, doesn't mean that they're going to give you the decisions you want after the fact.

Well, I think that's what the administration is learning here.

Yeah.

Go ahead.

I quote the famous most famous political philosopher in the last 75 years.

You can't always get what you want, but if you try, sometimes you just might find you get what you need sometimes.

The honorable Michael Jagger, known as Mick.

And he's not even an American.

I know he's not an American, but my point is, this is, there's no need to pack the court.

The wisdom was it was a mistake when Roosevelt tried.

It was a mistake when Democrats brought it up.

The the president of the United States, there are consequences for elections.

We elected Donald Trump twice.

He was entitled to put the people on the court that he wanted there.

It turns out that several of them appear to have some significant differences with Trump's brand of ideology, under what I think is a very clear declaration in the 14th amendment.

But packing the court is a diversion argument.

No need to do that.

I, I disagree with the conservative, composition of the court, but it turns out I agree with him on other things like the the transgender issue.

I, agree with them on the mail in ballot issue.

So I think it's a hodgepodge sometimes.

I agree with them, sometimes I disagree with them.

That was true with the Warren Court, with the Burger Court before and the Rehnquist Court before this.

Well, let me give Lucretia the last word here in the last 30s.

Judge Dellinger said, a couple times in the last couple of years, we've been talking about his faith in the legal system will hold even if there are challenges that look to be going far outside the bounds of what the law prescribes.

Are you pretty confident that our legal system is holding pretty successfully right now?

I think it is.

I think we have ups and downs.

And, you know, just looking at it from an immigration perspective.

You know, we've had some cases where we've had losses from the immigration side.

We just had a temporary protected status case last week where, the Supreme Court said that up the secretary, the Department of Homeland Security can get rid of TPS.

They it's not subject to review by the courts, just giving the executive a lot of power.

So, days like that, I'm like, oh, not so great.

But, but I would say holding steady so far.

It's certainly it's been a move towards more executive power in recent years.

And I've seen in my lifetime.

Yeah, that's another conversation for a different day.

Thanks to both of you for being here, sharing your expertise with us.

Lucretia Knapp is an immigration attorney at Mancuso.

Brightman.

Thank you for making the time.

And Judge Dellinger, always nice to see you.

Thank you for coming in with us.

Always a pleasure.

Enjoy your vacation.

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