Donald Trump was right when he told Bill O’Reilly that some very smart lawyers believe the Citizenship Clause of the 14th Amendment has been wrongly interpreted. Those lawyers include John Eastman, Mark Levin and Andrew McCarthy, three friends of mine who have been frequent guests on the show, John weekly other 15 years.
The weight of opinion and precedent is greatly on the other side of the argument, for reasons best summarized in this article by James Ho, former Clarence Thomas clerk (like Eastman) and a senior partner with Gibson, Dunn, & Crutcher. But the key point is that every conservative AG in the country has standing to bring the case Mr. Trump wants brought, and none have (or will) since it is such a likely loser and a political disaster at the same time. I don’t think anyone will disagree that the current courts will uphold the interpretation that reaches back in practice to the last century (the Supreme Court case often cited by opponents isn’t on point since both parents were legal residents). We do know that since the earliest immigration laws were passed in the post Civil War era, the children of violators of those laws were deemed by all authorities to be American citizens. We also know that the children of Tories who fled the country after the revolution and returned were also deemed citizens.
In short, there is an argument on Mr. Trump’s side; some very smart people support it; those people are few in number versus those who oppose it and that those who oppose it likely include 95% of the federal bench, and there are reasons why no state AG, even the most originalist and conservative among them, has made this argument in court while many have stepped forward to oppose the president’s unconstitutional attempt to gut the immigration laws.
With that background, it is best that campaign 2016 be fought on other ground, especially the ground that includes building a long, strong, double-sided fence with a patrol road between it along at least half of the 2,000 mile U.S.-Mexican border, as I have been arguing for since my 2006 book Painting The Map Red, and in many other forums. The failure of the GOP to deliver the Fence into legislative language with great specificity when it could have done so –especially in the immigration reform “deals” of recent years– is a black eye on the party, and the failure of GOP candidates to be specific about its size, length, and location hurts their nomination and general election chances because a vast majority of Americans favor a secure border, and the fence is a visible expression of an inward resolve to control the border. Once built, I should add, it cannot be turned off or withdrawn or waived. Finally, to the “they will bring a bigger ladder crowd,” I respond by pointing to the fences constructed in Israel and being built on two borders by Saudi Arabia, and of course the fence around the White House. These fences are not perfect, but they are a huge and obvious part of the solution of border security and the refusal to be specific about them indicates a fundamental lack of seriousness about the issue.
The fence unifies our side and divides Democrats. The Citizenship Clause debate divides our side and unifies theirs. It is obvious which issue the GOP candidates and their supporters should be arguing.