Birthright citizenship: the government’s orginalist rationale

The government brief on birthright citizenship was submitted to the Supreme Court, in Trump v Barbara. Currently, birthright citizenship is 100% assured except in very limited circumstances, such as being a child of a diplomat. This virtually complete right is tied by courts to the 14th amendment which reads:

“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.”

The government brief takes a circuitous route to redefine “subject to the jurisdiction.” It introduces the term “primary allegiance” – the child must have primary allegiance to be subject to the jurisdiction. This term and its definition is not nailed down in past court decisions. The brief ties the term to immigration categories, such as illegal status, temporary status, adding another term “domicile.” If a child cannot claims domicile status, it is not given citizenship.

If one peels away these terms, one gets to a core, “originalist” interpretation, that Congress retains the right to create and quality immigration status categories and domcile and primary allegience, and thereby citizenship rights of newborns. Thus, for example, assume there is a 10-year working visa program. Congress could define this program in a way to deny citizenship status of children born to such parents.

Because this is fundamentally an originalist argument, there will be justics such as Thomas and Alito who will support the government’s position. Perhaps Barrett, Kavanaugh and Gorsuch.  Hence, it could be a close vote and go either way.

The administration’s rationale for barring nationalities

The precise number of countries whose nationals are barred is not clear.  The presidential action of this month identified 39 countries. Not included in Palestine and Gaza; there can be others added. This posting addresses the bureaucratic reasonins for the bans and provides a summary of 39 countries.

The goverment bases its travel bans on the grounds that visa overstays, corruption and internal instability make it difficult for the State Department to screen visitors to the United States.  One might argue that the challenges to screening are vastly exaggerated.  There have been only about five fatal foreign-born terrorist attacks by these nationalities since 1980. (Since 1980 there have been at least 700 mass murders of at least five persons.) It might well be that other measures to reduce overstays could be applied.

Here is a comprehensive government document, showing how the 39 countries  accumulated over several months.

Most countries are small to very small, and the impact for them on the U.S. society and economic is extremely low. However, Nigeria, with a population of about 233 million, is included.  Most of the countries have stable governments and about half are middle income countries – neither impoverished nor with seriously compromised central governance.

Roughly half of the affected countries have partial, the other half full suspensions.  Partial suspension means that temporary business and students visas are not issued, but an array of more specialized visas is permitted. Full suspension means that virtually all entries are barred.

Visa overstays. The median global overstay rate for all countries appears to be about 2.5%.  The median overstay rate among the affected counties for overstaying business, personal and tourist visas (B-1 and B-2 visas) is 9.95%. The median overstay rate for student visas is 18.43%. the precision of these figures obscures the reality that a lot of intepretation goes into overstay rates.

Administrative failures. Corrupted or otherwise deeply flawed government records (for instance criminal records); corrupt educational certification processes; corrupt passport issuance, refusal to accept deportees who are citizens of the country, and other criteria. Virtually all affected countries are faulted in this area.

Security-based risks. Where State Department screening cannot effectively control for state collapse, terrorist organizations, armed conflict, kidnapping risks, transnational criminal activity, etc. Half of countries fail here. Again, the number of terrorist acts in the U.S. by these nationals is vanishingly small — about 5 in 40 years.

What about the truly major country on the list, Nigeria? It has a business visa overstay rate of about 5% and a student visa overstay rate of about 12%.

List of countries: country name, partial or full suspension, business visa overstay rate if known, and population. Example:  Senegal is partly banned, has a business visa overstay rate of 4.3% and a population of 18,8 million.

Africa — Angola (P; B‑1/B‑2 14.43%; pop. ~37.9m); Benin (P; 12.34%; ~14.6m); Burkina Faso (F; 9.16%; ~23.4m); Burundi (P; rate n/a; ~14.0m); Chad (F; rate n/a; ~19.5m); Côte d’Ivoire (P; 8.47%; ~31.9m); Equatorial Guinea (F; rate n/a; ~1.9m); Eritrea (F; rate n/a; ~3.7m); Gabon (P; 13.72%; ~2.5m); The Gambia (P; 12.7%; ~2.8m); Libya (F; rate n/a; ~7.5m); Malawi (P; 22.45%; ~21.7m); Mali (F; rate n/a; ~22.4m); Mauritania (P; 9.49%; ~5.1m); Niger (F; 13.41%; ~28.2m); Nigeria (P; 5.56%; ~232.7m); Republic of the Congo (F; rate n/a; ~6.2m); Senegal (P; 4.3%; ~18.8m); Sierra Leone (F; 16.48%; ~8.9m); Somalia (F; rate n/a; ~19.0m); South Sudan (F; 6.99%; ~11.5m); Sudan (F; rate n/a; ~50.4m); Tanzania (P; 8.30%; ~68.6m); Togo (P; rate n/a; ~9.3m); Zambia (P; 10.73%; ~21.6m); Zimbabwe (P; 7.89%; ~16.6m).

Asia — Afghanistan (F; rate n/a; ~43 m); Iran (F; rate n/a; ~90.6m); Laos (F; 28.34%; ~7.6m); Myanmar/Burma (F; rate n/a; ~54.1m); Syria (F; 7.09%; ~23.2m); Turkmenistan (P for immigrants only; rate n/a; ~7.1m); Yemen (F; rate n/a; ~40.6m).

Western Hemisphere — Antigua and Barbuda (P; rate n/a; ~0.09m); Cuba (P; rate n/a; ~11.1m); Dominica (P; rate n/a; ~0.07m); Haiti (F; rate n/a; ~11.8m); Venezuela (P; rate n/a; ~28.3m).

President Donald Trump’s Thanksgiving message on Truth Social

A very Happy Thanksgiving to all of our Great American Citizens and patriots who have been so nice in the allowing our Country to be divided, disrupted, carved up, murdered, beaten, mugged, and laughed at, along with certain other foolish countries throughout the world for being politically correct, and just plain STUPID, when it comes to immigration. The official United States foreign population stands at 53 million people (Census), most of which are on welfare, from failed nations, or from prisons, mental institutions, gangs, or drug cartels. They and their children are supported through massive payments from Patriotic American Citizens who, because of their beautiful heart, do not want to openly complain or cause trouble in any way, shape, or form. They put up with what has happened to our Country, but it’s eating them alive to do so. A migrant earning $30,000 a year with a green card can get roughly $50,000 in yearly benefits for their family. The real migrant population is much higher. The refugee burden is the leading cause of social dysfunction in America, something that did not exist after World War II (Failed schools, high crime, urban decay, overcrowded hospitals, housing shortage, and large deficits, etc.) As an example, hundreds of thousands of refugees from Somalia are completely taking over the once great state of Minnesota. Somalian gangs are roving the streets looking for prey, as our wonderful people stay locked in their apartments and houses, hoping against hope that they will be left alone. The seriously retarded Governor of Minnesota Tim Walz does nothing, either through fear, incompetence, or both, while the worst congresswoman in our country. Ihan Omar, always wrapped in her swaddling hijab and who probably came into the US.A. illegally in that you were not allowed to marry your brother, does nothing but hatefully complain about our Country, its constitution, and how “badly” she is treated, one for when her place of origin is a decadent, backward, and crime ridden nation, which is essentially not even a country for lack of government, military, please, schools, etcetera.

[NOTE:  On Thanksgiving Day the death was announced of the National Guard member Sarah Beckstrom, stationed in D.C. and murdered by a former CIA-hired Afghan. Asked if he’ll attend the funeral of Beckstrom, Trump said: “It’s certainly something I can conceive of… I won West Virginia by one of the biggest margins of any president anywhere.”]

Messages from the Pope and American Catholic Bishops

Some 43% of Hispanics in the U.S. identify themselves as being Catholic. (20% of all Americans identify as Catholic.)

ICE on November 1, in Chicago, turned away a delegation of clergy, including a Catholic bishop, who wanted to bring the detained Catholics holy Communion on the Catholic feast of All Saints

Pope Leo said on November 4, quoting from the Gospel of Mathew: “”Jesus says very clearly at the end of the world, we’re going to be asked, you know, how did you receive the foreigner? Did you receive him and welcome him or not? And I think that there’s a deep reflection that needs to be made in terms of what’s happening. Many people who’ve lived for years and years and years, never causing problems, have been deeply affected by what’s going on right now.”

The American bishops issued a statement:

“We oppose the indiscriminate mass deportation of people. We pray for an end to dehumanizing rhetoric and violence, whether directed at immigrants or at law enforcement.”

The complete statement:

As pastors, we the bishops of the United States are bound to our people by ties of communion and compassion in Our Lord Jesus Christ. We are disturbed when we see among our people a climate of fear and anxiety around questions of profiling and immigration enforcement. We are saddened by the state of contemporary debate and the vilification of immigrants. We are concerned about the conditions in detention centers and the lack of access to pastoral care. We lament that some immigrants in the United States have arbitrarily lost their legal status. We are troubled by threats against the sanctity of houses of worship and the special nature of hospitals and schools. We are grieved when we meet parents who fear being detained when taking their children to school and when we try to console family members who have already been separated from their loved ones.

Despite obstacles and prejudices, generations of immigrants have made enormous contributions to the well-being of our nation. We as Catholic bishops love our country and pray for its peace and prosperity. For this very reason, we feel compelled now in this environment to raise our voices in defense of God-given human dignity.

Catholic teaching exhorts nations to recognize the fundamental dignity of all persons, including immigrants. We bishops advocate for a meaningful reform of our nation’s immigration laws and procedures. Human dignity and national security are not in conflict. Both are possible if people of good will work together.

We recognize that nations have a responsibility to regulate their borders and establish a just and orderly immigration system for the sake of the common good. Without such processes, immigrants face the risk of trafficking and other forms of exploitation. Safe and legal pathways serve as an antidote to such risks.

The Church’s teaching rests on the foundational concern for the human person, as created in the image and likeness of God (Genesis 1:27). As pastors, we look to Sacred Scripture and the example of the Lord Himself, where we find the wisdom of God’s compassion. The priority of the Lord, as the Prophets remind us, is for those who are most vulnerable: the widow, the orphan, the poor, and the stranger (Zechariah 7:10). In the Lord Jesus, we see the One who became poor for our sake (2 Corinthians 8:9), we see the Good Samaritan who lifts us from the dust (Luke 10:30–37), and we see the One who is found in the least of these (Matthew 25). The Church’s concern for neighbor and our concern here for immigrants is a response to the Lord’s command to love as He has loved us (John 13:34).

To our immigrant brothers and sisters, we stand with you in your suffering, since, when one member suffers, all suffer (cf. 1 Corinthians 12:26). You are not alone!

We note with gratitude that so many of our clergy, consecrated religious, and lay faithful already accompany and assist immigrants in meeting their basic human needs. We urge all people of good will to continue and expand such efforts.

We oppose the indiscriminate mass deportation of people. We pray for an end to dehumanizing rhetoric and violence, whether directed at immigrants or at law enforcement. We pray that the Lord may guide the leaders of our nation, and we are grateful for past and present opportunities to dialogue with public and elected officials. In this dialogue, we will continue to advocate for meaningful immigration reform.

As disciples of the Lord, we remain men and women of hope, and hope does not disappoint! (cf. Romans 5:5) May the mantle of Our Lady of Guadalupe enfold us all in her maternal and loving care and draw us ever closer to the heart of Christ.

 

 

 

The American Enterprise Institute on immigration, 2015 and 2025

The American Enterprise Institute in 2015:

“[Nicolas] Eberstadt [of the American Enterprise Institute] sees US demographic trends as mostly positive. The US, the world’s third-most-populous country (321.4 million people) and largest economy (GDP of $18.1 trillion), is projected to have modest population and working-age population growth over the next 20 years. And its population will age more slowly than in other OECD countries. The US still has a positive replacement-level fertility rate, augmented by continued immigration, including an influx of highly educated immigrants at a rate above the OECD average, he said. Eberstadt sees immigration in the US and Canada as a “fantastically positive experience” for those countries.” (Quoted here.)

The American Enterprise Institute in July 2025:

Report: “Immigration Policy and Its Macroeconomic Effects in the Second Trump Administration”

This AEI report projects that U.S. net migration in 2025 will fall to between −525,000 and 115,000 and reduce GDP growth by 0.3–0.4 percentage points. Its model estimated that if low immigration persists, GDP in 2034 would be roughly 1–2 percent smaller than under normal migration levels. That is to say, the GDP in 2034 would be about 41 trillion with pre Trump prevailing immigration and about 40 trillion without.  Thus its model expects a modest adverse impact.

 

 

 

DACA status: A Russian doll of legal reasoning

The legal status of DACA can be compared to a Russian matryoshka. A federal judge declared it illegal 2021; it still operates; and when the Supreme Court will receive it for review is uncertaion.

Deferred Action for Children Arrival was created on June 15, 2012 not by Executive Order of President Obama bur rather by a Department of Homeland Security  memorandum, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” issued by: Janet Napolitano, Secretary of Homeland Security.

On July 16, 2021, in State of Texas, et al. v. United States of America, et al, The United States District Court for the Southern District of Texas, Brownsville Division (Judge Andrew S. Hanen) ruled that the DACA program was illegal because admininistrative memoranda from DHS were not intended for such a broad scope, and because the program violated the Administrative Procedures Act.

In response, the Biden administration undertook a cure. It e-established DACA in federal regulation (8 C.F.R. §§ 236.21 – 236.25); kept the same eligibility criteria as the 2012 memo; clarified that DACA does not confer lawful status, but provides deferred action and work authorization, and created a clearer administrative record to defend the policy in court.

But in September 2023 Judge Hanen again ruled that the program was defective. Among his objections was that DACA exceeds the powers Congress granted to DHS under the Immigration and Nationality Act. Congress never authorized DHS to grant “deferred action” and work authorization to such a broad class of undocumented immigrants. The government had “creates a program that Congress has repeatedly declined to enact.”

But Hanen allowed the program to continue for persons already enrolled – about 540,000. Had the Administration been permitted to continue enrollment and to broaden eligibility, over one million would be enrolled as of the fall of 2025.

On appeal by the plaintiffs, the Fifth Circuit on January 17, 2025 found that the DACA regulation is unlawful but limited the scope of its ruling to Texas and maintained a stay to allow current DACA recipients to continue renewing their benefits while the litigation continues. The Appeals court expressed caution noting that the welfare of many persions was at stake,

The case is not yet ripe for an appeal to the Supreme Court. The program has been operating for over a dozen years, efficiently, without scandal, and with broad public support. I suspect The SC doesn’t want to touch this box of explosives.

Short term business visitors, such as the Hyundai workers

Trump got countries to pledge to invest in manufacturing and other ventures in the U.S. Will they do it if their workers from the sourcing country are put in chains by ICE?

Temporary labor programs can be mired to bureaucratic decision-making culture, which entails delays and use of guidelines that are hard to meet and also easy to violate. These issues appear in very temporary business visits (addressed here), long term stays such as the H-1B program (three years), and seasonal farm labor programs, such as the H-2A program. The permission process for these programs is so complex that employers using these programs often make heavy use of temporary staffing firm to get the permissions.

A boiling point was reached in a September 4 ICE raid on Hyundai-LG battery plant under construction in Ellabell, Georgia, part of a joint venture between Hyundai and LG Energy Solution.  Some 300 Koreans were put in chains.  The ham-handed arrests escalated doubt about how foreign investors can invest in projects that require specialized help by foreign nationals.

The permissions used by Koreans were very likely B-1 business visitor visas and the visa waiver / ESTA program (Electronic System for Travel Authorization). Both can be used for “business,” such as training, planning, etc., but not actual “work.”  Work is defined as jobs that Americans can do. A B-1 visa might take weeks to obtain (including a visit to a consulate). A visa waiver is obtained within minutes, available for citizens of 40 trusted countries. Korea is one of them. These waivers last 90 days. One uses a B-1 when a single stay is up to six months, and when repeated visits over years is expected.

Allowed under B-1/ESTA: Korean engineers can visit for several weeks to up to six months at a time (valid for up to ten years) to train U.S. staff on how to operate new equipment. They give presentations, observe, and answer questions. Not allowed: Those engineers must not install the machines themselves, run production lines, or supervise construction crews. That is considered “work,” and they’d need an employment visa (like H-1B, L-1, or H-2B depending on the role). One problem with this is that installing and testing machines may involve proprietary information that the plant owners do not want to reveal to Americans.

The Hyundai plant owners reportedly engaged with specialized contractors, for whom the workers were employed, for the purpose of managing the B-1/ESTA programs bureaucracy.

Wall Street Journal editorial on arrest and placing in chains the 300 Korean engaged in the  Hyundai plant in Georgia said:

“The fallout from last week’s blunderbuss raid on a Hyundai plant in Georgia continues to reverberate in South Korea, and it pays to listen to President Lee Jae Myung’s remarks this week. “This could significantly impact future direct investment in the U.S.,” Mr. Lee said at a news conference. South Korean companies “can’t help hesitating a lot” about making new investments in the U.S. if their workers are liable to end up in detention facilities.”

Abrego Garcia released, returns to custody, Xinis bars preemptory deportation

Abrego Garcia developmements since early June:

Garcia’s trial in federal court in Tennessee remains active. On May 21, he was indicted for conspiracy to smuggle persons in the U.S. and conspiracy to smuggle within the U.S. over 1,000 undocumented persons. The evidence against him appears to be that from others who were jailed or imprisoned for smuggling. A timeline of the case from March to June 7, when Garcia appeared in court in Tennessee, is here. For most of June and July the Garcia case was out of the news, while the trial was being prepared.

July 23: Maryland Federal district court judge Xinis ruled that Garcia must be released from ICE custody in Tennessee and that 72 hours’ notice must be given prior to deporting him.

August 22: a federal magistrate Barbara D. Holmes in Tennessee ordered Garcia to be released from federal custody that day and allowed to travel to Maryland, then to be taken into ICE custody. This happened.

Xinis subsequently set a hearing on October 6. Xinis said that she wanted to be sure that ICE’s actions comply with due process.

On August 22, DHS Secretary Noem twitted (referring to Xinis): “Activist liberal judges have attempted to obstruct our law enforcement every step of the way in removing the worst of the worst criminal illegal aliens from our country. Today, we reached a new low with this publicity hungry Maryland judge mandating this illegal alien who is a MS-13 gang member, human trafficker, serial domestic abuser, and child predator be allowed free. By ordering this monster loose on America’s streets, this judge has shown a complete disregard for the safety of the American people. We will not stop fighting till this Salvadoran man faces justice and is OUT of our country,” she continued.”

ICE at some point arranged for Garcia to be deported to Costa Rica.

August 23 Garcia’s lawyers submitted to Judge Xinis a statement that the government was attempting to coerce Garcia to admit to the Tennessee charges. After his August 22 release from detention, the government allegedly changed his deportation destination from Costa Rica to Uganda and demanded he accept a guilty plea by August 25 or face removal to Uganda.

August 25 Having returned to Maryland, Garcia showed up at an immigration interview and was arrested by ICE and put back into custody.

August 26, Garcia’s lawyers asked Judge Xinis to protect his stay in the U.S. while he appeals to an immigration judge, seeking asylum.

The next chapter in this story appears to take place on October 6.

 

Fishing for non-citizen voters in Nevada

The Department of Justice, on August 14, indicated to the state of Nevada its intent to search for non-citizens on the voter registration rolls of the state (go here).

At least seven states have attempted to locate non-citizens on voter registration rolls. Each attempt failed to find more than an extremely small number, and these could be database errors. They are Georgia, Texas, New Hampshire, Florida, South Carolina, Virginia and Ohio (go here).

The motor vehicle registration systems include citizenship status. Investigations to match MV registration data with voter registration data tend to come up with a relatively tiny number of instances where the MV database shows non-citizenship and the person is a registered voter. The common flaw in all attempts is the assumption that the matching databases are up to date and that all entries are 100% what the party intended. It is possible that the individual forgot to change their MV data upon naturalization. It is also possible that a naturalized citizen mistakenly recorded themselves as a non-citizen in their MV record.

The Ohio caper, the most recent effort (in 2024) resulted in a finding of several hundred records, for which the errors noted above had not been audited. The number of such cases were one in 13,000 registered voters.

These kinds of local articles can blunt mass deportation

As ICE expands its arrest of unauthorized persons who have settled into the local economy and social networks within politically moderate or conservative communities, local media coverage can raise awareness among people who are otherwise indifferent to mass deportation.

Yamhill County a largely farming and wine grape growing area in rural Oregon. Its undocumented worker populations has been estimated at about 3,000/. The county has voted Republican since 1964.

According to the NT Times’ Nichola Kristoff, who was born there. ICE arrested in June and deported Moises Sotelo, an unauthorized Mexican who had lived in the county for 31 years and owns a vineyard management company employing 10 people. He has two American born children.

The local newspaper, the News Register, ran an editorial on June 20, “Immigration raids violating our nation’s proud heritage.” This kind of local press coverage of mass deportation in politically conservative communities are a crucial element in blunting and perhaps immobilizing the Trump administration’s deportation policy.

Excerpts from the editorial:

As long as federal immigration policy remains nothing more than fare for political debate in Washington, D.C., it may seem a matter of little consequence to people immersed in their daily routines in other parts of the country.

Even the occasional isolated raid or seizure — shocking as it may seem when targets are flown to prisons in Sudan or El Salvador in the middle of the night, without even the pretense of due process — typically fails to fully puncture the protective shield of not-in-my-backyard complacency.

But when heavily armed Immigration and Customs Enforcement agents raid a packing plant in Omaha or a restaurant in Los Angeles — and haul scores of unsuspecting workers off to federal detention centers, leaving a trail of broken families in their wake — it becomes a watershed locally.

We experienced one of those moments here last week, when vineyard supply company owner Moises Sotelo-Casas was scooped up in Newberg, along with one of his employees, and spirited off to a federal detention center in Tacoma. His daughter learned of his fate not by getting official word from ICE, but by tracking his cell phone.

…. Sotelo was a 30-year resident who had peacefully and lawfully gone about raising a family, launching a successful, highly respected business, and sinking deep church and community roots. A GoFundMe campaign launched on his behalf raised more than $116,500 in the first week, attesting to his standing.

ICE said he had once been convicted of driving under the influence in Newberg. However, the district attorney’s office has no record of such a case and none could be found in the state’s criminal justice database.

Besides, a one-time DUI would hardly qualify him for “worst of the worst” status as a hardened criminal. And according to their daughter, both he and his wife have begun a legalization process under rules established during the Biden administration.

One local winery posted a message terming him “truly one of the most humble, kind and generous individuals we’ve met in Newberg.” It went on to say, “He poses ZERO threat to public safety. His family is justifiably distraught and we share their distress.”

Another local winery posted, “He is deeply involved in his church, pays taxes, and is the central moral and financial support of his family, including wife, children and grandchildren.” It concluded, “Moises meets all with a smile on his face and generosity in his heart.”

….. millions of workers are needed to tend, harvest and process fruit, vegetable and meat products for the American table. It’s hot, dirty, demanding work, and the American workforce is already at full employment.

Removing the immigrant element, or even a significant portion of it, is a recipe for economic disaster. And economic reverses tend to almost inevitably trigger political reverses.

The truth is, the labor of hard working and highly motivated immigrants, legal or not, has underpinned our economy throughout our history. A sudden cutback could thus carry serious consequences, especially in a nation experiencing a persistent, long-running decline in its birth rate.

Here’s hoping those realities will persuade the administration to ease back on its wrenching immigration crackdown, which is becoming a growing stain on our national heritage.