separation of powers

The Birthright Citizenship Case Exposes a Constitutional Crisis Unfolding

/ kevingdrendel / 2 Comments

I don’t often play the lawyer in my blog. The blog is about faith and a journey toward truth. Despite my own inclinations to avoid politics, I find myself sucked into what is going on because of the unprecedented nature of the changes that have occurred so quickly since Donald Trump took office. As a result, I am reading more articles on the daily political drama that is currently unfolding than I normally would.

In some ways, Donald Trump is simply expanding executive authority as previous presidents have done (especially recent ones), though he is expanding it further and faster than it was done before. The expansion of executive authority is nothing new, but he is pushing the envelope more quicky and more expansively than ever before.

In other ways, Trump is going where no previous presidents have dared to go. He is blurring the lines of his executive authority and constitutional constraints in ways and with a boldness we have not previosuly witnessed.

The Executive Branch of government has no constitutional authority to make law. A president only has power to carry out the law established by Congress (with certain defined exceptions). Executive actions that go beyond or are contrary to the laws established by Congress and the few constitutional grants of power can be questioned in the courts.

Donald Trump’s order to end birthright citizenship is an example of his executive actions over the last two months. The Supreme Court recently agreed to take up the cases filed in several states in which injunctions were issued against that birthright order. I get weary of the moral and political fray, so I am going to take a step back today and do a little analysis of the mechanics of what is going on.

Birthright citizenship is in the US Constitution. It wasn’t always there. It was introduced in the 14th Amendment that was ratified after the Civil War, and it provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens.

I should point out that the 14th Amendment was a dramatic change to the laws of our country. It changed the very foundation of our law – the Constitution. It was done through the mechanisms embedded in the Constitution, though. It wasn’t a maverick move by one man in power; it was done by the constitutional amendment process that requires passage by two-thirds of both houses or a constitutional convention called by two-thirds of the states, and it must be ratified (approved) by three-fourths of the state legislatures.

This is an onerous process, but it is meant to be difficult. The fear of the founders of our country was that one small segment of power or one man could change everything – as in the European monarchies from which the settlers of our country came. They built into the fabric of our governing structure a separation of powers, a federal government and many state governments, and processes that create a system of checks and balances – like the process to amend our Constitution. These things were done to mitigate against the fear of sudden change that might destabilize the democratic republic.

The 14th Amendment was passed in 1868. It took about three years after the end of the Civil War to get it passed, and that was moving through the process quickly. The bedrock of the 14th Amendment is at issue in the cases that are currently being taken up, now, by the US Supreme Court. The opening lines are as follows:

“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

14th Amendment, Section 1

Citizenship to all people born in the United Stated is the foundation of the 14th Amendment. From this foundation, the Amendment grants due process and equal protection, which are arguably the most significant protections that Americans enjoy.

The application and scope of the 14th Amendment was challenged 30 years later in a case that made its way up to the US Supreme Court from the 9th Circuit in California. (See United States v. Wong Kim Ark, 169 U.S. 649 (1898)) At issue was a 21-year-old Chinese man who was born to Chinese citizens who lived in San Francisco when he was born in 1873.

The Chinese Exclusion Acts passed in 1882, prohibiting Chinese laborers from entering the US, making Chinese immigrants ineligible for citizenship. It also required Chinese people who left the country to obtain citizenship before re-entering the country.

Wong Kim Ark parents returned to China with him in 1890 when he was 17. He retuned briefly in 1894, and returned to the US again – the country of his birth – in 1895. Upon returning a second time, he was detained under The Chinese Exclusion Acts. The prosecutors in this case argued as follows:  

“Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time past has been, a laborer by occupation.

“Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.”

(As an aside, this language would never fly today. It is racially charged language and discriminates against people solely based on race, ethnicity, and national origin. The law itself targeted one nationality, ethnicity, and race of people. Immigration laws would continue to target people by nationality, ethnicity, and race until the early 1960’s. The wheels of justice, indeed, turn slowly, but we are better than that now, right?)

The issue in the Wong Kim Ark case focused on the 14th Amendment. The prosecutors focused on the qualifying statement in italics: “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” They argued that Wong Kim Ark was never “under the laws of the United States”, because his parents were “Chinese persons and subjects of the Emperor of China”, and Wong Kim Ark was “also a Chinese person and a subject of the Emperor of China.”

In effect, they argued that Wong Kim Ark was not subject to the jurisdiction of the United States because his parents were subjects (citizens) of China. One might ask why they detained him if he wasn’t subject to the jurisdiction of the US, but I digress.

After tracing the history of English common law, Napoleonic law, and even Roman law on citizenship, the Court focused on what Congress intended by the 14th Amendment in light of the Civil Rights Act that they passed in 1866, just two years earlier. The Civil Rights Act made persons citizens who are “born in the United States, and not subject to any foreign power.” (Subject to foreign power meant a a diplomat or person in similarly representing a foreign power.)

The 14th Amendment was intended to embed civil rights protections, including citizenship, in the US Constitution so it could not be undone easily by a future Congress or any state legislature. “Its main purpose doubtless was … to establish the citizenship of free negroes” that was denied in the Dred Scott case. (US v. Wong Kim Ark at 676) Thus, the “all persons” language signaled that citizenship is based on “place and jurisdiction and not by color or race.” (Ibid.)

The Dred Scott case, decided in 1857 by the US Supreme Court, was the law of the land until the Civil Rights Act of 1866 and the 13th and 14th Amendments. The Civil War, the Civil Rights Act, and the subsequent constitutional amendment intervened to change that law. Significantly, the Civil War affirmed the sovereignty and unity of the United States, and the legislation and the constitutional amendments changed the law through lawful processes.

In reviewing the history of legislation on citizenship, the Wong Kim Ark court concluded, “[T]he fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.” (Id. at 688) With that, the further Court concluded:

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”

Birthright citizenship has long been the law of this land (since 1868). It doesn’t matter whether the parents are citizens; a child born physically in the United States is a citizen according to the 14th Amendment as affirmed by the US Supreme Court. With that little history, I want to get to my point.

The article, Trump’s Birthright Citizenship Order Reaches the Supreme Court, written by Abbie VanSickle in the NY Times, notes that the same qualifying language, “subject to the jurisdiction of the United States” at issue in the Wong Kim Ark case is also the focus of the birthright citizenship case currently before US Supreme Court. Longstanding precedent is not immune from challenge. Roe v. Wade became the law of the land in 1973, and it was directly overturned in 2022 by Dobbs v. Jackson Women’s Health Organization.  

I imagine that the Wong Kim Ark case could be distinguishable on the fact that Wong Kim Ark’s parents were not in San Francisco illegally when he was born, while Donald Trump seems to be focused on the children of illegal aliens. By my reading of the reasoning in the Wong Kim Ark case and the authority it cites, that difference should not be a distinction that makes a difference, but we will have see how these cases play out. In the meantime, I want to comment on the current state of affairs from a different angle.

Continue reading →

Taxation, Representation and Morality

/ kevingdrendel / Leave a comment

paul revere statue, north end, bostonDSC_0096DSC_0100

My wife’s recent visit to Bunker Hill in Boston on a trip to New England to see her family got me thinking about the “Boston Tea party” and the dumping of tea into the Boston Harbor to protest British taxation. “No taxation without representation” was the rallying cry at that time.

That slogan seems odd today. Taxes are a part of our lives and seemingly always have been. But it wasn’t always like that.

Federal taxation was very limited through the first 137 years after the Revolution. From 1791 to 1802, only certain goods were taxed. Sales taxes were used to fund the War of 1812 but were eliminated in 1817 when the funding was no longer necessary. The first federal income tax was imposed in 1862  to fund the Civil War and was eliminated in 1872 when it was no longer needed.

Until the twentieth century, federal taxes generally, including income taxes, were only used for specific purposes, primarily for protection of the country. That changed in 1913 with the 16th Amendment to the US . That year a permanent income tax was established, and we have not looked back. (Click here for more on the history of taxes.)

The level of taxation to which we have become accustomed is a modern construct, and federal government self-restraint is a now thing of the past.

We have traveled far from the days of the Revolution. Gone is the moral outrage over the taxation, among other things, that led to the Revolutionary War. Now we see a different morality at work that is evident in President Obama’s recent statement, “I don’t care if it’s legal, it’s wrong.” He was speaking of the increased tendency for corporations to move their headquarters out of the US to avoid the payment of higher taxes in the US, but that is an outgrowth of a new moral construct that has at work today.

Bear in mind, the President recognizes that the companies are doing nothing illegal. They are taking advantage of provisions written into the tax code. The present prevailing morality, however, of which the President is the chief spokesman, condemns the avoidance of taxation. Where our leaders once sought to be free of taxation and government rule in favor of private enterprise; now taxation and government control is the moral hue and cry.

Consider this however. There are mechanisms that all people and businesses use to avoid paying higher taxes. Those mechanisms are all written into the Internal Revenue Code. For instance, every person can assert an individual exemption, and taxpayers who are married with children may assert individual exemptions for each spouse and child. Is the use of those exemptions a moral issue?

People commonly refer to these mechanisms that are written into the tax code as “loopholes”. They are not loopholes, really, but provisions that are part of the tax code that are available to people and businesses to reduce the amount of tax they pay. The word, “loophole”, itself, suggests a moral position.

Many of the “loopholes” were designed to encourage certain behavior. For instance, we are allowed to deduct mortgage interest, which is an encouragement for people to buy houses. Deductions for the purchase of energy efficient appliances and home improvements are intended to encourage people to buy them. Charitable donations are meant to encourage charitable giving.

Some might might consider the exercise of individual taxpayers’ rights to minimize their taxes an exercise of individual representation that was won when the founding fathers shook of oppressive British control. But there is a counter revolution that is growing in support. The current Commander in Chief is the most prominent spokesman, but there is also a ground swell of grass roots support.

A large segment of modern US society seems to consider it immoral to avoid taxes, albeit legally. It is a selective morality to be sure. No one seems to argue that individuals should not use the exemptions available to them…. unless they are too successful at using those exemptions. But, where do we draw the line? When is it morally alright to avoid taxes, and when is it morally wrong? Is there a moral obligation to pay more taxes than one should?

Frankly, it is not a moral issue at all, and it never has been. It is control issue. It is an ideological issue. But, it is not a moral issue.

Some tax avoidance devices are are not as straight forward. Some mechanisms may not have been what Congress intended when it passed the current code and the amendments to it, but the mechanisms people use are based on the way the Internal Revenue Code is written. Certainly, the tax code is unnecessarily complicated, and that complexity has spawned a large industry based on maximizing the use of the tax code provisions to minimize taxes.

Instead of condemning behavior that is legal as immoral, albeit legal, should we not focus on changing the tax code instead condemning legal behavior?

That is how it should work, but we have a disturbing trend occurring. Congress is becoming more polarized and less effective and less capable of reaching consensus or compromise to get things done. Most people (even Congressmen) agree that tax reform (and immigration reform and other things) must be addressed, but they cannot work together to get anything done. Members of Congress seem more concerned about getting reelected and pandering to constituents than taking on these issues that must be addressed.

At the same time, we see our current President rushing into the void and wielding an ax and a pen to cut out and to add to the law as he, unilaterally, determines. The rule of law is being jeopardized in the process and power is concentrating in the executive office as it never has before in our history. I would add that it is not the raw number of executive orders and other executive actions, but the character and impact of them that threatens the checks and balances that have protected us from our government all these years.

Government is necessary in a civilized society, but government restraint is necessary in a free society. The larger our government gets, the more it has the ability to become oppressive. The further away from local control government is, the more out of touch it becomes. The larger government gets, the more bureaucratic and inefficient it becomes. These are principles that informed the founders of our country, but we seem to want to abandon them now.

Further, in spite of federal taxation that has been the rule for the last 100+ years, the budget deficit swells out of control. That is a moral issue, in my opinion, as we add every day to the burden our children and grandchildren will have to carry.

We are tending in a direction that I think our founding fathers would find frightening and disheartening. Taxation in and of itself is not a bad thing, but the rallying cry today might be, “No taxation without self-restraint!”

Congress does not effectively represent the people at this time in our history. The areas that most people agree need to be addressed are not being addressed because of partisanship, factions, incivility and unwillingness to compromise. Rhetoric on both sides is becoming increasingly polarized. Even our media is now partisan. At the same time, we see an increasing tendency toward a moralism that is above the law. That moralism is becoming the justification to make unilateral decisions that are not representative of the people, but representative of an ideology.

The combination of Congressional inaction, unilateral executive actions and selective enforcement of existing law is triggering state and individual reaction. There is change in the wind. The forces are lining up on either side and digging in. The future is at stake and the outcome is uncertain.

Change is inevitable, but will it be change that is representative of the people? Or will it be change that is imposed by a moral elite from the bully pulpit with the force of a powerful, central government that is loosing touch with the people?