"Government immigration restrictions are how tyranny will come to modern America."

Two weeks ago Cato's Alex Nowrasteh debated comedian Dave Smith at NY's Soho Forum on the resolution “Government restrictions on the immigration of peaceful and healthy people make sense from a libertarian standpoint, especially in present-day America."

Alex was on the negative side.

He began by arguing that government immigration restrictions are how tyranny will come to America.

As he says below, "I didn't expect it to happen so quickly."

CLICK to watch (15 min.)

SUNDAY READ: There Is No Good Reason to Revoke Birthright Citizenship

A US president may only issue an executive order in accordance with current law and his powers under the Constitution. A Reagan-appointed judge just issued a Temporary Restraining Order halting Trump's Executive Order outlawing birthright citizenship as outside the law. “I can’t remember another case whether the question presented was as clear,” he said.

Perfect time to read today's guest post by Alex Nowrasteh on why birthright citizenship is lawful, why it's good, and why there's no benefit to ending it.

There Is No Good Reason to Revoke Birthright Citizenship

by Alex Nowrasteh
Shortly after being inaugurated, President Trump issued an executive order that purports to restrict birthright citizenship. The only authority he invoked for redefining some features of birthright citizenship was “the authority vested in me as President by the Constitution and the laws of the United States of America.”

Birthright citizenship has been the norm in the United States since before the passage of the Fourteenth Amendment and even before the American Revolution, going back to Calvin’s Case in 1608 that established jus soli in all areas ruled by the English Crown. In 1869, the British jurist Lord Chief Justice Alexander Cockburn summed up English common law as:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

American courts affirmed jus soli before the Civil War, as attorney Alexandra M. Wyatt wrote for the Congressional Research Service in 2015. She mentions several cases, such as the 1824 Supreme Court case of M’Creery’s Lessee v. Somerville, where the court proceeded on the assumption that three girls born in the United States were citizens even though their father was an Irish citizen who never naturalised. In the 1844 case of Lynch v. Clarke, a New York court held that Julia Lynch, who was born to Irish nonimmigrant sojourners in New York, was a US citizen. The most relevant quote from Lynch v. Clarke was this:

I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.

That standard was then codified in the first sentence of Section 1 of the Fourteenth Amendment to the Constitution, also known as the citizenship clause, which reads:

All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The only exceptions are those who are not under the jurisdiction of the US government, such as the children of diplomats, who are not under the direct power of the American government. Many online commentators point to a quotation by Senator Jacob Howard, who introduced the Fourteenth Amendment and defended it, to argue that the amendment wasn’t intended to create birthright citizenship. During one debate, Howard said:

This amendment which I have offered, is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Howard’s first sentence is just an affirmation of the old English common law rule of jus soli that the United States inherited from Great Britain and that was earlier enforced by US courts, except for slaves and American Indians. But the second sentence is being misread online by people who support revoking birthright citizenship. The phrase, “This [the citizenship clause of the Fourteenth Amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers,” is being interpreted by some to mean that the three groups—foreigners, aliens, and those who belong to the families of ambassadors—are not children.

Wait a second, did you notice the difference between my summary and the original quotation? I inserted the word “and,” while Howard did not. That’s because Howard was describing the families of ambassadors as being foreigners and aliens. Howard did not list three distinct groups of people who were not under the jurisdiction of the US government; he described one group: ambassadors and their US-born children.

The 1898 Supreme Court decision of United States v. Wong Kim Ark established that the US-born children of immigrants were and remained citizens even if there were changes in law that would not have allowed them or their parents to legally immigrate here or naturalise. The Court held that a person born in the United States to Chinese parents who had travelled to China in his early 20s was a citizen of the United States and could not be denied reentry to the United States by the Chinese Exclusion Act. Combined with the earlier English common law, its application to the United States before the Civil War, and its codification in the Fourteenth Amendment to correct the Dred Scott v. Sandford decision that repudiated centuries of English and American law, it’s clear that the children born on US soil to nonimmigrants on worker or student visas, illegal immigrants, or mere travellers are US citizens.

Many lawyers, attorneys, and scholars will recount the above legal debate far better than I have. There are other issues that should be addressed if birthright citizenship is to no longer be the law of the land. 

The practical problem

To start, there are practical problems. There is no central registry of American citizens; native-born Americans show their birth certificates as evidence of citizenship. Everybody born here who registers their birth is granted a certificate in our decentralised system. Naturalised immigrants simply show their naturalisation documents. When either receives a passport, they use it to show citizenship. Trump’s order is prospective for those born to some non-citizen migrants, but if the courts uphold it, then he will issue future executive orders to broaden its scope—possibly to people who are already adults. At a minimum, any broadening will cause mass administrative chaos and uncertainty. Even if the executive order is not broadened, the chaos will still spread with births. If birth certificates are not good enough anymore, then we’d have to rely on proving that our parents were citizens or had another immigration status that allows their US-born children to be citizens. Can you do that?

There’s already an American law for inheriting citizenship referred to as jus sanguinis [meaning "right of blood"]. It is intended for children born to US-citizen parents overseas, but it can be quite cumbersome. It’s certainly more complicated than showing a birth certificate that says you were born in the United States. The elimination of birthright citizenship could eventually place every single person in America in the precarious position of having to prove American citizenship via descent to justify their own citizenship, or that of their children.

Creating a national registry of citizens would avoid some of the confusion described above. Of course, that would add another layer of complex determinations of citizenship at birth at potentially many thousands of locations by either immigration law experts or bureaucrats. This would be a managerial nightmare and not quite the destruction of the administrative state that we were all promised by the Trump administration. Then what happens to the share of children born here who are stateless, the people born in the United States who are ineligible for American citizenship and don’t have it from their parents’ home countries?

The practical administrative effects are bad, but the broader impact of revoking or constraining birthright citizenship on assimilation is worse. At a minimum, about 7 percent or so of those born on US soil each year would not be US citizens if birthright citizenship were revoked along the lines of the Trump executive order. That condition would worsen the assimilation of the children of immigrants and their descendants in the United States. After all, the children born here who aren’t citizens wouldn’t pass citizenship on to their US-born children if they married other noncitizens. It’s easy to see how that would produce worse outcomes—just look at Europe.

How to create resentment

The German Citizenship and Nationality Law of 1913 only granted citizenship to those with at least one parent who was a German citizen at the time of the child’s birth, a fairly extreme version of jus sanguinis. Those citizenship laws created an assimilation crisis after World War II when post-war guest worker programs admitted many Turks, Tunisians, and Portuguese to work in the booming economy. Many of these workers stayed and had children who weren’t automatically citizens.

Among other causes, a lack of citizenship led to resentment among generations with only partial allegiance to the country of their birth. German-born non-citizens formed “parallel societies” and were more prone to crime and political radicalism than German-born German citizens. Germany provides the best opportunity to study the effects of birthright citizenship on assimilation. In 1999, the German parliament amended that law to create a birthright citizenship component for children born on or after January 1, 2000, if at least one parent had been ordinarily residing in the country for at least eight years. The law also created a transition period for many children born from 1990 through 2000 to be naturalized if they met the requirements of the new law.

This change in German citizenship law prompted a flood of research on how the new law affected immigrant assimilation in Germany, as I have written about. Economists Ciro Avitabile, Irma Clots-Figuera, and Paolo Masella looked at how the new German law affected parental integration in a peer-reviewed paper published in the prestigious Journal of Law and Economics. Their paper uses responses from the German Socio-Economic Panel survey to see how immigrants whose children were affected by the new citizenship law changed their behavior relative to those unaffected. The paper focuses on measurements of these immigrants interacting with Germans (visiting or being visited by a German in a social situation), speaking German, and reading German newspapers. On all three metrics, the immigrant parents of children who could be naturalised became more integrated.

The effects were small but noticeable. The percentage of immigrant parents who had interactions with Germans rose from 71 percent before the reform to 77 percent afterward; the ability to speak German rose from 65 percent before the reform to 69 percent afterward; and reading of German newspapers increased from 2.6 to 2.9 on a five-point scale (1 is home country papers only, and 5 is German papers only). Importantly, the measure of speaking German doesn’t control for fluency. They also found that the outcomes are larger for immigrants who came from a country that speaks an Indo-European language. Importantly, Turkish is not an Indo-European language. For those from a non-Indo-European language group, the reform had no effect on language acquisition, but it increased their interactions with Germans to the same degree as those of Indo-European language speakers.

Taking a wider view of the impact of this law in Germany, Avitabile, Clots-Figuera, and Masella, the same economists mentioned above, published a peer-reviewed paper in the American Economic Journal: Applied Economics that looks at how child citizenship laws affected fertility decisions among immigrants. Fertility is partly (but not entirely) influenced by culture, so many social scientists and economists think it is an important indicator of immigrant assimilation. Consistent with Gary Becker’s quality-quantity model of fertility, they found that birthright citizenship reduced immigrant fertility and improved their health by cutting obesity and improving the social-emotional outcomes of the affected children. Again, the effects are small, but the citizenship reform moved immigrants closer to German fertility and health norms.

Researchers Nicolas Keller, Christina Gathmann, and Ole Monscheuer also examined how fertility and family structure change under the altered citizenship laws. They found that within 7.2 years of eligibility for citizenship, the immigrant-native fertility gap fell by 20 percent by raising the age of first births to immigrant mothers and reducing the likelihood of them having children. The citizenship reform also narrowed the marriage gap between German and immigrant women by 45 percent and German and immigrant men by 50 percent. Immigrant women were also more likely to marry men who were not from their own country of origin after the reform, but the effect was small.

Christina Felfe, Helmut Rainer, and Judith Saurer found that immigrant parents enrolled their children in preschool at a higher rate after the citizenship reform, closing the gap with native Germans. They also enrolled them earlier in primary school and pushed their children into the university track at higher relative rates. Furthermore, reported “attention deficits” and “emotional problems” for the children of immigrants also decreased in schools relative to natives, while there was no effect on reported “social problems,” “German language proficiency,” or “school readiness.” Another paper by Felfe, Rainer, Saurer, and Martin Kocher found that the educational achievement gap between young immigrant men and their native male peers nearly closed due to the reform and that immigrant boys became more trusting. The latter effect virtually eliminated in-group favoritism for immigrant boys. The granting of citizenship to immigrant children also reduced return migration and increased the rate at which mothers who stay at home with their children were counted among the parents whose children were affected.

Conclusion

The revocation of birthright citizenship not only goes against almost 420 years of legal precedent but also will raise practical difficulties for native-born Americans regardless of their parentage. Furthermore, revoking birthright citizenship will likely worsen assimilation outcomes for the children of immigrants who aren’t born citizens. Perhaps those added problems are worth it in exchange for large benefits, but proponents of revoking birthright citizenship can’t point to any of those. With the law, tradition, common sense, reason, and empirical evidence on the side of maintaining birthright citizenship, we can only hope that the courts maintain our exceptional system in its current form.

* * * * 

Alex Nowrasteh is is an American analyst of immigration policy currently working at the Cato Institute. His popular publications have appeared in the Wall Street Journal, USA Today, the Washington Post, and most other major publications in the United States. Nowrasteh regularly appears on Fox News, MSNBC, Bloomberg, NPR, and numerous television and radio stations.

What's happening down at the Texas border crossings, why does it have State and Federal Government at each other's throats, and what does it have to with the US Constitution? Alex Nowrasteh explains all in this guest post — the border is a mess, he admits, but it's not a warzone ... 

 

Explaining the Border Standoff Between Texas and the Federal Government

by Alex Nowrasteh

From the beginning of the Biden administration in January 2021 to December 2023, the US Border Patrol had over 6.3 million encounters with illegal immigrant border crossers. Almost 4 million of those encounters, or about 58 percent, were in border sectors partly or wholly in Texas. In addition, the Department of Homeland Security estimates that about 1.6-1.8 million illegal immigrant “gotaways” entered without being apprehended by Border Patrol.

Most of the massive surge in encounters over the last several years is explained by the strength of the US labour market and incredible demand for foreign labour at a time of historically low unemployment and near‐​record job openings. Many migrants come illegally because there are so few ways for lower‐​skilled immigrants to enter lawfully and US labour demand is so high.

Many of those coming illegally are allowed into the United States with a Notice to Appear (NTA) in front of an immigration judge or on parole. In fiscal year 2023, the Border Patrol released 908,788 migrants on parole or with an NTA, and transferred an additional 372,018 to other federal agencies like Immigration and Customs Enforcement, Health and Human Services, or to the US Marshals. (There were 583,051 removals, returns, voluntary returns, and other detentions.)

Border Patrol processes large numbers of illegal border crossers who are allowed into the United States, many of whom ask for asylum under US law until they get their day in immigration court (the Biden administration is trying to change this). The immigration court backlog is currently about 3.3 million, more than ten times more than in 2012. Those migrants are going to be waiting, working, and living in the United States for a long time before their hearing, and many won’t leave even if the court orders them to go.

The escalating number of illegal border crossers prompted Texas Governor Greg Abbott to commence Operation Lone Star, a state‐​level initiative to support border security in March 2021d. It deploys the Texas National Guard, the Texas Department of Public Safety (DPS), and other law enforcement personnel. 

Right from the get-go, there were disputes between the Federal Government's Border Patrol and the Texas agencies.

Most contentiously, by October 2023 the Texas National Guard had placed about 70,000 rolls of concertina wire on the border near Eagle Pass. The Federal Government's Border Patrol was upset about that because it reduced their ability to move along the border, especially to move from the riverbank into the Rio Grande, where many migrants were crossing and some were drowning. The Texas National Guard and Texas DPS occasionally cut the wire to assist migrants in danger or process them for removal or release, but the Federal Border Patrol and the Texas agencies disagreed about when to cut it, and Border Patrol sometimes did so without permission.

In September 2023, the Federal Border Patrol began to cut the concertina wire placed by the Texas National Guard in Eagle Pass, Texas. And from then to now, the Feds and state have battled each other in court. 

On October 24, the State of Texas sued in federal court to make the Federal Border Patrol stop cutting the wire. Three days later, Texas Attorney General Ken Paxton filed an emergency motion for a temporary restraining order to halt Border Patrol from removing concertina wire. The court granted a temporary restraining order on October 30 to halt Border Patrol from further removing concertina wire. The Federal district court ruled against Texas’s request for a temporary injunction pending trial on November 29th. Texas appealed to the United States Court of Appeals for the Fifth Circuit the next day. The court granted an emergency stay on the district court’s order, and the court enjoined Border Patrol on December 19 from further destruction of the concertina wire except in cases of medical emergency. And on January 2nd, 2024, US Solicitor General Elizabeth Prelogar filed an Application to Vacate the Injunction Pending Appeal with the Supreme Court.

Until this point, all parties in the case were playing nicely. And then on January 10, the situation spun wildly out of control when the State of Texas seized Shelby Park, which is owned by the city of Eagle Pass and abuts the Rio Grande. The Texas National Guard then built fencing around the park and denied Border Patrol access to the park’s facilities, including the boat ramp.

A spokesperson for Governor Abbott justified the seizure by arguing that “Texas is holding the line at our southern border with miles of additional razor wire and anti‐​climb barriers to deter and repel the record‐​high levels of illegal immigration invited by President Biden’s reckless open border policies … the Biden administration allows unfettered access for Mexican cartels to smuggle people into our country.”

Solicitor General Prelogar filed a supplemental memorandum with the Supreme Court on January 12 arguing that the state’s seizure of the park and the construction of fencing prevented Border Patrol from accessing part of the river by denying them access to Shelby Park’s boat ramp, which was to become crucially important. The day before, January 11, Border Patrol stopped operating boats along that section of the river because Texas denied them access to the boat ramp in Shelby Park. On the night of January 12, a Mexican woman and two children drowned in the river by Shelby Park in the area where Border Patrol was patrolling before being denied access to the park.

Prelogar filed a second supplemental memorandum with the Supreme Court on January 15, noting that Mexican authorities informed Border Patrol of the drowning on the night it occurred but after the fact, and that the active Border Patrol supervisor went to the gate at Shelby Park to inform the Texas National Guard that there were migrants in distress in the river. The Texas National Guard denied Border Patrol access to the park. Texas disputed many of those facts a few days later, and some details remain unanswered.

On January 22, the Supreme Court vacated the Fifth Circuit’s ruling that barred Border Patrol from removing wire, and granted them access to all areas of the border. The next day, the Department of Homeland Security (DHS) asked for Border Patrol to be allowed access to Shelby Park by January 26. On that day, Texas denied DHS’ request to “once again transform Shelby Park into ‘an unofficial and unlawful port of entry.’” Texas will be arguing its case in front of the Firth Circuit on February 7. Expect another appeal regardless of the ruling.

In response to the Supreme Court allowing Border Patrol to access the border, Governor Greg Abbott made an incredible statement that is worth reading in its entirety. The most important section is this:

James Madison, Alexander Hamilton, and the other visionaries who wrote the US Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,” and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting).
    The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self‐​defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border.

Twenty‐​five Republican governors issued a joint statement supporting Governor Abbott and his claim that Texas is being invaded by “illegal immigrants, deadly drugs like fentanyl, and terrorists.” Abbott’s statement has many other supporters.

Invassion? There is a world of difference between a soldier crossing a border at the head of an army and an illegal immigrant crossing a border because he wants a job.

Blind to the difference, Abbott is claiming nonetheless that Article I, § 10, Clause 3 of the Constitution gives Texas the power to declare that illegal immigrants are invading and that Texas can wage a war against them. That clause states: 

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” [emphasis added]

Illegal immigration and the chaos that accompanies it are big problems. But the only thing that illegal immigrants coming here to work and the German Army entering Paris in 1940 have in common is that in both cases people are moving.

Ilya Somin and Aaron Reichlin‐​Melnik have explained in detail why “actually invaded” means “actually invaded by a foreign military” — and this according to the Founding Fathers who wrote the Constitution and to every court since then. However, I’d just like to highlight a quote from the case of Padavan v. New York where several state senators sued the federal government for compensation for state costs incurred by illegal immigration. They claimed, among other things, that New York was being invaded under the definition of Article I, § 10, Clause 3—just like Abbott's claim now. The court dismissed the complaint for failure to state a claim, using this robust logic:

Assuming, arguendo, that the plaintiffs’ Invasion Clause claim is justiciable, the claim still must be dismissed for failure to state a claim upon which relief can be granted. In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the State’s government. See The Federalist No. 43 (James Madison) (stating that the reason for the Invasion Clause is to protect the states from “foreign hostility” and from “ambitious or vindictive enterprises” on the part of other states or foreign nations). Clearly, New York State is not being subjected to the sort of hostility contemplated by the Framers.

You would that that the statement by the Father of the Constitution on one page of The Federalist Papers should carry more weight with Originalists than all the press releases by all the governors in the United States. After all, Madison was president when Washington DC was burned in 1814 when the British invaded during the War of 1812—so unlike Gov Abbott he knew from personal experience what “actually invaded” means.

None of this is to deny that illegal immigration is a serious problem. Bad legal arguments and linguistic confusion do not obscure the disaster of a chaotic border. In my first Cato blog post in 2012, I argued that, so long as the United States is a desirable destination. the only way to reliably and permanently reduce illegal immigration is by expanding legal immigration. That still stands.

President Biden could reduce illegal immigration by expanding the successful parole programme that allows some American‐​sponsored Cubans, Venezuelans, Nicaraguans, and Haitians to fly into the United States legally. Governor Greg Abbott should help the Biden administration by dropping Texas’s other lawsuit against parole and refraining from further inhibitingtrade for no good reason. Other than crashing the economy, expanding legal immigration is the only reliable way to massively reduce illegal immigration without committing crimes against humanity.

Not every serious problem is an invasion that requires the government to shoot people. I hope that Governor Abbott and President Biden tone down the rhetoric and de‐​escalate this situation. In President Biden’s case, it means relying on the courts without federalizing the Texas National Guard. In Governor Abbott’s case, it means reading Federalist No. 43 by James Madison.

Some of the noisier anti-immigration posters on Twitter and elsewhere could do with reading it too.

* * * * 

Alex Nowrasteh is an American analyst of immigration policy currently working at the Cato Institute, a libertarian think tank located in Washington D.C. Nowrasteh is an advocate of freer migration to the United States. He previously worked as the immigration policy analyst at the Competitive Enterprise Institute, another libertarian think tank. Nowrasteh is a self-described "radical" advocate for open borders to and from the United States. He has published a number of peer-reviewed studies on immigration and co-authored with Benjamin Powell the book Wretched Refuse?: The Political Economy of Immigration and Institutions.

Follow him on Twitter, or at his Substack.

PS: Here's Ronald Reagan speaking against 2024 Republicans ...