Is Birthright Citizenship Constitutionally Required?

Lord help me if I have to write about anything else Donald Trump says, but I do have a few thoughts on the birthright citizenship debate he’s launched. I’ll set aside the policy aspects, which have been covered in previous years in the Cato Journal, at a Cato Hill briefing, on this blog, by my colleague Alex Nowrasteh in a pithy oped, and I’m sure many other places on our website. (Alex also posted this week an extended analysis of Trump’s new position paper on immigration.) My main take-away on the policy side is that we don’t want to create a permanent state-less underclass like what exists in many countries.

Now, on the law – on the question of whether you would need a constitutional amendment to end birthright citizenship or could just do it by amending the relevant immigration statutes – the picture is actually less clear. The first thing that the Fourteenth Amendment says, before we get to privileges or immunities, due process, and equal protection, is the following: “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.” It’s that italicized “subject to the jurisdiction thereof” that’s at the heart of the debate.

Here’s the basic history: The common law at the time of the Founding gave birthright citizenship to all except slaves and Indians. The Supreme Court’s infamous ruling in Dred Scott (1857) confirmed the denial of citizenship to slaves, even if they were freed. The Fourteenth Amendment overturned Dred Scott with respect to blacks (and other non-white races), though Indians were still denied citizenship because they owed allegiance to their tribes, not to the United States. (Native Americans were granted citizenship by statute in 1924, though that allegiance/dual-loyalty paradox still clouds much of Indian law.) 

The proponents of the Fourteenth Amendment added “subject to the jurisdiction” to the Fourteenth Amendment in order to exclude from citizenship two groups beside Indians: the children of (1) foreign diplomats and (2) enemy forces engaged in hostile occupation. That understanding was affirmed by the Supreme Court in United States v. Wong Kim Ark (1898), when it recognized the U.S. citizenship of a man who was born in San Francisco to Chinese parents. Wong’s parents weren’t citizens, although they were legal residents. 

But what about illegal immigrants? Illegal aliens and their children are subject to our laws and can be prosecuted and convicted of violations – unlike diplomats, who enjoy certain immunities, and unlike foreign invaders, who are generally subject to the laws of war rather than domestic civil law. The illegal immigrants’ countries of origin can hardly make a “jurisidictional” claim on kids born in America (at least while they’re here). Thus, a natural reading of “subject to the jurisdiction” suggests that the children of illegals are citizens if born here.

On the other hand, the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration. “Subject to the jurisdiction” probably meant primary allegiance to the United States as a sovereign.

My sense of the constitutional question – again setting aside my policy view that more liberal immigration laws (accompanied by vigorous border control to prevent crime, terrorism, and public-health issues) would resolve much of the illegal-alien problem – is as follows.  

When the original public meaning of a legal text is unambiguous, you have to adopt that meaning unless it leads to absurd consequences. Here, the consequences may well be irrational and self-defeating: We prohibit unauthorized entry while offering an inducement, giving citizenship to the children of those who violate the law. So if Congress were to deny citizenship to children of illegal aliens, the Supreme Court might not declare that law unconstitutional. It’s a close call (read the strong arguments pro and con constitutional birthright citizenship by my friends Jim Ho and John Eastman, respectively).

Would the Court consider the consequences of a textual meaning that gives birthright citizenship to the children of illegal immigrants to be absurd?  If so, the intent or purpose of the Fourteenth Amendment’s enactors might trump the text. On the other hand, and being realistic, if Chief Justice John Roberts can find that a mandate is a tax and that a federal exchange was established by a state, there’s no way that the current Supreme Court would eliminate birthright citizenship for anyone.

So really, let’s debate some serious policy issues. It’s just not classy or luxurious to keep pressing this birthright-citizenship stuff.

A Bitcoin Constitutional Amendment

Some influential developers of the software that runs Bitcoin have proposed an important amendment to the functioning of the leading cryptocurrency. It’s a development as important to Bitcoin as a constitutional amendment aimed at the Fed would be to the dollar.

The debate has been characterized in some headlines as “existential,” and one write-up called it a “constitutional crisis.” Both are probably overstating the situation. But it’s worthwhile to dig in and see what we should make of the debate. Doing so can tell us how things might go for lots of things in the world of cryptocurrency, including potential future proposals to alter Bitcoin’s embedded monetary policy.

Overshoot Day Underestimates Human Ingenuity

Media outlets ranging from Newsweek and Time, to National Geographic and even the Weather Channel, all recently ran articles on the so-called “Overshoot Day,” which is defined by its official website as the day of the year

when humanity’s annual demand for the goods and services that our land and seas can provide—fruits and vegetables, meat, fish, wood, cotton for clothing, andcarbon dioxide absorption—exceeds what Earth’s ecosystems can renew in a year.

This year, the world allegedly reached the Overshoot Day on August 13th. Overshoot Day’s proponents claim that, having used up our ecological “budget” for the year and entered into “deficit spending,” all consumption after August 13th is unsustainable. Let’s look at the data concerning resources that, according to Overshoot Day’s definition, we are consuming unsustainably. (We’ll leave aside carbon dioxide absorption—as that issue is more complex—and focus on all the other resources).

Does Donald Trump Really Do Best Among Less Educated Voters?

Gage Skidmore/flickr

The short answer is: Yes, Donald Trump likely has greater appeal among less educated Americans.

While we should keep in mind that the margins of error are wider for subsets of national polls—Trump consistently performs better among Americans who have not graduated from college than among college graduates.

For instance, Rasmussen finds that among Republicans who have not finished college, 25 percent support Trump for president compared to 11 percent among Republican college grads.

No other Republican candidate comes within 16 points of Trump among GOP non-college grads. However, among Republicans with college degrees, Trump is just one of many favored candidates: Scott Walker (13 percent), and Carly Fiorina (12 percent) score slightly better, and Marco Rubio (11 percent) ties Trump. All of these are within the margin of error.

Similarly, an August CNN/ORC poll finds that in a hypothetical match-up, Hillary Clinton leads Trump by 15 points among college graduates nationally, but only leads by two points among non-college graduates. Moreover, another CNN/ORC poll found that among all Americans, Trump’s favorables were underwater: -32 points among college grads but only by -8 points among non-college grads.

These August polls line up with July polls finding Trump performing better among less educated voters, as I detail in this piece at Federalist.

Does this mean that Trump’s appeal is any less genuine or meaningful? Definitely not. But his candidacy has the capacity to divide the more educated from the less educated.

For more public opinion analysis sign up here for weekly digest of Cato Public Opinion Insights.

Can Alaska’s Governor Implement ObamaCare’s Medicaid Expansion without the Legislature?

Alaska Gov. Bill Walker (I) initially asked the legislature to approve the state’s participation in ObamaCare’s Medicaid expansion. The legislature has thus far declined. Now, Walker is trying to implement it anyway, and the legislature appears to be taking him to court. According to Alaska Dispatch News:

The Alaska Legislature on Tuesday said it will sue Gov. Bill Walker to block his move last month to expand the public Medicaid health care program without lawmakers’ approval.

Following a private discussion Tuesday morning, a Republican-controlled House-Senate committee voted 10-1 to spend up to $450,000 on two law firms to represent the Legislature in a suit against the governor.

One, Bancroft PLLC, is based in Washington, D.C., and represented more than two dozen states in their U.S. Supreme Court challenge to the Affordable Care Act, or “Obamacare.” The second, Holmes, Weddle & Barcott, is based in Anchorage.

In a news conference after the committee vote, Republican leaders framed their decision to challenge the governor as a constitutional one. They’re seeking an injunction to stop Medicaid expansion from going into effect Sept. 1.

“This is not a policy issue — we’re not discussing whether we should or shouldn’t expand Medicaid,” said Senate President Kevin Meyer, R-Anchorage. “This is a question of authority and process and our constitution.”

[…]

The Legislature is challenging Walker’s move based on a provision in Alaska statute that requires legislative approval before Medicaid coverage can be offered to people whose care is not required under federal law.

The version of “Obamacare” passed by Congress required states to expand Medicaid to cover low-income Americans, who can otherwise face steep health care costs without the subsidies that the legislation offers to individuals with higher incomes.

As written, the law would have revoked all federal Medicaid funding for states that didn’t go through with the expansion. But the U.S. Supreme Court said in 2012 that the threat of revoking the money was unconstitutional and coercive.

The ruling created ambiguity for Alaskan policymakers and legal experts: If Medicaid expansion is technically required under the ACA, but the Supreme Court has ruled the federal government can’t enforce the requirement by revoking money from states that don’t comply, does that make the newly eligible people under Walker’s proposed expansion an optional group that requires legislative approval?

Walker, citing a memorandum from Attorney General Craig Richards, says no. The Republican lawmakers that support the lawsuit say yes and argue the governor is circumventing their authority.

An initial filing in the Legislature’s lawsuit is expected next week.

Read the whole thing here. For more, see these posts from the Foundation for Government Accountability.

The IMF’s Little Greek Secret

Landon Thomas, Jr. of The New York Times reports that the International Monetary Fund (IMF) might not pony up any cash for the third Greek bailout. To calculate the odds on whether the IMF will, or will not, contribute bailout funds requires knowledge of the IMF’s little Greek secret.

By late 2009, Greece was clearly in big trouble. The European Commission (EC) and the European Central Bank (ECB) did not trust the Greek government. So, the IMF was called in to negotiate loan conditions for new Greek financing. Dominique Strauss-Kahn (DSK) was the IMF’s managing director and was preparing to run for the French presidency as the Socialist candidate. DSK was more than willing to give his socialist brothers in Athens a helping hand. As a result, in 2010, Greece received a massive bailout.

Just how massive? Normally, the IMF is limited to lending up to six times a country’s IMF quota subscription to that country. However, if the IMF judges a country’s debt to be sustainable, then that country can qualify for “exceptional access,” and the IMF credit extended to such a country can exceed the 600% limit. Thanks to DSK and the IMF experts, the debt sustainability reports were rosy, until recently. The IMF extended credit to Greece, and did so generously.

The following table tells the tale. Greece holds the record for the highest IMF credit level relative to a country’s quota.

What about the little secret? Well, the IMF has been caught out. It’s massively overextended to Greece. And that explains the cat and mouse game over whether the IMF will, or will not, deliver a present at the third Greek bailout party.

Lone Star Rail Insanity

Interstate 35 between San Antonio and Austin is congested, so obviously (to some people, at least) the solution is to run passenger trains between the two cities. Existing tracks are crowded with freight trains, so the Lone Star Rail District proposes to build a brand-new line for the freight trains and run passenger trains on the existing tracks. The total capital cost would be about $3 billion, up from just $0.6 billion in 2004 (which probably didn’t include the freight re-route).

Click image to download a PDF version of this map.

By coincidence, that was the projected capital cost for the proposed high-speed rail line between Tampa and Orlando (cancelled by Florida Governor Rick Scott), which are about the same 80-miles apart as Austin and San Antonio. But, despite the cost, Lone Star wouldn’t be a high-speed rail line. According to a 2004 feasibility study, trains would take about 90 minutes between the two cities, with two stops in between. While express trains with no stops would be a bit faster, cars driving at Texas speeds could still be faster.

Lone Star is asking the San Antonio city council for $500,000 to help pay for an environmental impact statement and other studies. Austin has supposedly already agreed to fund its share, though it isn’t in the city’s budget.

Lone Star is promising 32 trains (16 each way) carrying 20,000 riders (10,000 round trips) per day at fares of up to $12. That’s more than 600 riders per train; though some may not go the entire distance, it still seems high. Megabus currently operates three buses a day that take 85 minutes between the two cities at fares of $1.50 to $7.50. It seems likely that if there were 20,000 people per day wanting to pay $12 to take the trip at the same speed, Megabus would find them.

If the goal is to relieve congestion on I-35, two new lanes would probably cost less than a billion dollars and would be capable of moving far more vehicles per day than Lone Star would take off the road. Of course, the highway is probably not congested over the entire route, so two new lanes for the full length probably aren’t necessary. Besides, self-driving cars will probably go on sale and eliminate any need for passenger trains before the first Lone Star train would turn a wheel.

San Antonio Mayor Ivy Taylor, who famously cancelled the city’s even more backwards streetcar project, says that Lone Star isn’t one of her priorities. “There will be benefits from this alternative transit option, but we have to be good fiscal stewards,” she added. Local taxpayers should hope that she and the San Antonio city council can resist the starry-eyed Lone Star plan.