By Joe Lowndes (October 31, 2018)
I’m unsure whether the question of whether Trump has the Constitutional authority to revoke birthright citizenship is the right one.
Almost all legal scholars from left to right appear to agree that he doesn’t. But it also seems like whistling past the graveyard to say that this is merely a ploy to rally the base for the midterms. The speed and velocity with which proto-fascism has entered mainstream politics, fully commandeering one of the two major parties, should give us pause in thinking that anything is off the table, particularly with regard to immigration. We have repeatedly watched the previously unimaginable become imaginable, and the imaginable become concrete reality.
Trump, through the militarized panic he is creating at the southern border, has already provoked violence and death. He now uses it to elevate Michael Anton’s bad interpretation of the 14th Amendment and make it sound like common sense to his base. In doing so he has likely moved the public discussion of birthright citizenship decisively rightward. Yes, it is about the midterms, but remember Trump as a populist-turned-fascist is a permanent campaigner.
We don’t really know how the Supreme Court would respond to an actual executive order, but we shouldn’t be sanguine about it given that the ground beneath our feet is slipping all the time these days. In any case, there are many ways to strip people of citizenship socially, culturally, and legally in an increasingly authoritarian society. For that reason, the question of birthright citizenship ultimately seems more like a political question – subject to the play of forces – than a safely sequestered Constitutional one. We shouldn’t assume that the institution will protect anyone here. We will have to defeat Trumpism in toto to defeat this latest attack, just like all the others.
