Tag: 14th Amendment

Birthright Citizenship:  Will the Supreme Court Overturn Wong Kim Ark after 127 years?

The Return of Wong Kim Ark

Wong Kim Ark was born in 1873 in the city of San Francisco to parents of Chinese descent. His parents could never achieve citizenship because of the Chinese Exclusion Act and America’s naturalization laws that privileged whiteness since 1790.  Forever migrants in the land of the free.  However, their son and daughters born in America were American, or so they believed. 

In August 1895 after visiting China, Wong Kim Ark sailed back to the United States eventually arriving at San Francisco Bay.  According to the Supreme Court opinion penned by Justice Horace Gary, Wong Kim Ark was denied entry on the “sole ground that he was not a citizen of the United States.”  That’s a polite way of saying he was denied entry because a capricious and racist customs collector, John Wise, decided he didn’t like the Chinese man standing before him. 

Can you imagine what went through Wong Kim Ark’s mind when Wise denied him entry to his homeland, ordering him detained on the ship that brought him home, the SS Coptic. The helplessness, legal purgatory, you aren’t a ‘real’ American.  We’ve all been vulnerable at some point in our lives to a capricious individual who couldn’t give a crap less whether your life collapsed into a heap of lost dreams, a life placed on hold. That kick in the gut that makes you want to puke. 

Between August 1895 and March 1898 Wong Kim Ark ceased to be a citizen of the United States in the eyes of many Americans, both in and out of the legal system..  Imagine being stateless for years in a country that treated you as an unwanted outsider, useful only for your labor. I can’t imagine the ordeal, living in fear of deportation to a land not native to you.  Ones fate in the hands of an American legal system that was designed to oppress people like you. Life held together by a legal thread tethered to the 14th Amendment.  

The Case 

The Chinese Consolidated Benevolent Association, born out of San Francisco’s Chinese immigrant community’s long experiences with systemic discrimination, filed a Writ of Habeas Corpus to free Wong Kim Ark from detention on the SS Coptic.   That filing began two journeys.  One for Wong Kim Ark to reclaim his citizenship and the other for America to establish the legal principle of birthright citizenship.

Justice Gray framed the argument in late 19th century legalese: “The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his  birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are carrying on business, and not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution…”

Thirty-one pages later the Court answered that question:  Yes.  Justice Gray writing, “…The question must be answered in the affirmative.”  This opinion was issued March 28, 1898, and in a week’s time, give or take a day or two, will mark its 127th anniversary.  

The Executive Order

One of his first acts as President, Trump issued Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.”  An Orwellian title meant to disguise racial hatred and the infliction of pain and suffering on vulnerable people.

The executive order set a two-pronged test for determining non-citizenship.  A negative test.  It reads uncomfortably like antebellum slavery statutes that based a child’s fate at birth as free or enslaved based on a parent’s status.  When birth should be a celebration of life this executive order turns into a nightmare, of families potentially destroyed, disassembled by a policy meant to be cruel, meant to dehumanize.

As for the executive order’s constitutionality, three federal district judges declared the executive order unconstitutional and placed pauses on its implementation.  Last week, however, the Supreme Court agreed to review whether the lower court orders should stand.  The Court gave the parties until early April to provide their arguments for keeping or overturning the lower courts opinions.  Why?  The Court did not have to hear the appeal since all three courts issued the same basic opinion.  There were no conflicting opinions to resolve. That is a worrying sign.  The Court should have said, ‘no.’  But they didn’t. 

An Uncertain future?

Will the Court eventually overturn Wong Kim Ark?  Yes, I do.  I suspect that at least four of the Justices would overturn the opinion today if they could.  I am unsure of Roberts and Barrett.  If the Justices later agree to hear oral argument regarding birthright citizenship, I believe they will overturn Wong Kim Ark by a 5-4 vote. Basically, ripping the soul out of this country.  Frankly, I don’t think Trump would have issued the executive order without some prior thumbs up by several Supreme Court justices.

Can you imagine the bureaucratic labyrinth of proof and denial awaiting millions of families should the court overturn 127 years of jurisprudence because a bigoted President doesn’t like black and brown migrants, the denizens of  “shit hole countries;” Trump standing in for the bigoted customs collector before Wong Kim Ark.  Endless rounds of notarized forms, systemic accusations of fraud, denials, reprieves, forever court hearings, fear of separation, dreams of reunion.  A hellhole designed to shatter souls.

Millions of stateless babies, millions of moms and dads sickened from anxious nights and days, families split and devastated by a party that claims to protect and nurture families. The executive order is predicated on racial animus and is counter to America’s values; deliberate misreads the 14th Amendment; trumped-up fables about American jurisprudence.  It does nothing to “protect the meaning and value of American citizenship,” on the contrary it taints America’s soul, divides the country, and throws citizenship into a bureaucratic shithole.

The Rule of Law:   Are Trump’s Executive Orders the New Bills of Attainder?

You may have noticed the term ‘Bill of Attainder’ recently in newspaper articles or streaming news services.  

A federal district Judge this week imposed a temporary restraining order on Trump’s Executive Order punishing a law firm that represents Democratic Party clients in general, and former special counsel Jack Smith in particular.  The Executive Order barred the firm, Perkins Cole, from federal contracts, stripped security clearances, and prohibited federal employees from retaining the firm for legal services.  The judge compared the Executive Order to a Bill of Attainder, writing that the Order ‘sent chills down her spine.’  Two things.  First, thank God someone has a spine in Washington DC, and two, it should send chills down everyone’s spines.

So, what is a Bill of Attainder?  Like many things in American Constitutional law, it has its roots in England.  William Blackstone’s mid-18th century “Commentaries on the Laws of England” provides the go to legal description of a Bill of Attainder.  Basically, Parliament could sentence a person to death, without a trial, through legislative fiat. Normally, for treasonous acts.  Execution for treason was a ritual in England and other monarchies.  After burning at the stake was banned in late 18th century, hanging, disembowelment while still alive, beheading  and quartering, became standard in England. Parliament could also seize property or banish a person from England simply through legislative acts, sometimes called Bills of Pain or Penalties.  America’s founders thought this a bad idea.  

The Constitution specifically prohibits Bills of Attainder.  At the Constitutional Convention, on Aug 22, delegates Elbridge Gerry of Massachusetts and James McHenry or Maryland introduced the clause “The Legislature shall pass no Bill of Attainder nor any ex post facto law.”  There was practically no debate, with most of the discussion on whether the latter part of the clause was necessary.  Which suggests they thought it not controversial to ban Bills of Attainder.  Nonetheless, coming very late in the convention, and before air conditioning, I imagine the urge to debate was wanning.  That said, many of the delegates were very familiar with Blackstone’s commentaries and some even had a copy in their personal library and thought the ban necessary.

In Article 1, which enumerates the powers of Congress, section 9, the Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.  In section 10, States were prohibited from enacting Bills of Attainder as well. While the proscriptions apply to Congress and State legislative bodies, it seems that the intent of the ban – and the spirit of the law — would also apply to Executive Orders.  An Executive Order, according the Chief Information Officers Council ( CIO.gov),  has, and I quote, “the force of law.”

I am not a lawyer or Constitutional scholar, but it seems to me that President Trump has weaponized Executive Orders to punish and impose pain on his political and culture war enemies.  Trump’s Bills of Pain and Punishment.

For instance, the creation of DOGE, an extra-legal government agency, to target and eliminate congressionally mandated and funded government programs.  Basically, hanging, gutting, and quartering the career civil service along with executive department and independent agencies without meaningful congressional oversight, public comment, or legal restraint. 

Another example, is the order to ban birthright citizenship through executive order: “Protecting the Meaning and Value of American Citizenship.”  An Order that blatantly lied about the Supreme Court’s century old interpretation of the 14th Amendment and birthright citizenship.  More on that in a forthcoming Blog on birthright citizenship. That order is motivated, it appears, by racial animus and is meant to punish the current wave of immigrants to America — which are overwhelmingly brown or black from, as Trump would say, “Shit Hole countries” — by making their children born in America stateless.

And finally, the Executive Order to “Protect the US from Foreign Terrorist and Other National Security or Public Safety Threats,” was used recently as a pre textual basis to detain a permanent legal resident and Palestinian activist and Columbia graduate Mahmoud Khalil as a national security risk. After his arrest he was sent to an immigration detention facility hundreds of miles away in Louisiana, even barring him from access to lawyers.  A judge stayed his deportation temporarily. That should scare the crap out of everyone.

Thankfully the courts have countered some of these executive orders, but will the Supreme Court sustain these lower court rulings.  That remains uncertain, even birthright citizenship is in jeopardy, I believe, given the present makeup of the Supreme Court.  If the Supreme Court decides to take up the Birthright case, and not let lower court rulings stand, that should send shivers of fear down every American’s spine.