Birthright Citizenship and Detaining Illegal Aliens

One change to detention rules and one mulled change President Trump would like to make.

Nate Jackson · Aug. 22, 2019

U.S. immigration law and practice has been a crumbling disaster for decades. President Donald Trump is, in numerous ways, challenging the status quo with policy changes and the ensuing legal battles. He made one change Wednesday and reiterated his desire for another.

First, the latter. “We are looking at birthright citizenship very seriously,” Trump said Wednesday of the practice of conferring U.S. citizenship on children born to illegal aliens on American soil. “It’s frankly ridiculous.” In October 2018, when he first pitched such an executive order, we discussed at length the true meaning of the 14th Amendment. We have long argued it has been grossly misinterpreted to provide for birthright citizenship of the children of illegal aliens — aliens who are not “subject to the jurisdiction” of the U.S. as the amendment clearly states. Its framers absolutely did not intend to confer citizenship on children whose parents flouted U.S. law.

Trump’s intention should he craft such an executive order would clearly be to force the courts to provide greater legal clarity on an issue that has long troubled many Americans. That doesn’t mean Trump would win a legal battle, however. The longstanding practice of conferring that citizenship has convinced many Americans (notably judges) that it’s what the 14th Amendment actually means and that Trump can’t change even the executive branch’s interpretation of it with an executive order.

Second, Trump ordered a change regarding detention of families and minors caught illegally crossing the border. In 1997, a court agreement known as the Flores settlement determined how such children should be treated, including releasing unaccompanied minors after only 20 days in custody. In 2015, Judge Dolly Gee, appointed by Barack Obama, expanded that to force the release of even minors who crossed with their parents. (Hello, separating children from parents.)

Political analyst Gary Bauer explains the predictable consequences:

Not surprisingly, family unit apprehensions have spiked 2,800% over the past six years, a direct result of the [expanded] Flores loophole. (Sadly, there have been thousands of cases of innocent children being exploited by unrelated adults hoping to take advantage of this loophole.)

President Trump has had enough of this insanity. He is ordering appropriate agencies to detain families together throughout the entirety of their immigration proceedings.

Under this new rule, no children will be separated from their mothers and no illegal immigrants will be released to disappear into the interior of the country. If they are allowed to remain in the country, they will be released together. If they are ordered deported, they will be deported together.

Over the last five months alone, the Border Patrol has apprehended 137,000 illegal-alien parents and children, only to release them almost immediately. Trump’s order is not just a corrective measure but a deterrent. “They won’t come,” Trump said. “And many people will be saved.”

Au contraire, says House Speaker Nancy Pelosi. Per her usual sanctimonious moralizing, she declared that Trump’s change is “seeking to codify child abuse” and “violating every standard of morality and civilized behavior.” Wrong. He’s merely attempting to reinstate Rule of Law, an utterly foreign concept to today’s Democrats.

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