Category: Ignorance of Law

Trump targeting birthright citizenship with executive order

President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for “Axios on HBO,” a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.

Why it matters: This would be the most dramatic move yet in Trump’s hardline immigration campaign, this time targeting “anchor babies” and “chain migration.” And it will set off another stand-off with the courts, as Trump’s power to do this through executive action is debatable to say the least.

Trump told “Axios on HBO” that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

  • “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.
  • When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
  • “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)
  • “It’s in the process. It’ll happen … with an executive order.”

The president expressed surprise that “Axios on HBO” knew about his secret plan: “I didn’t think anybody knew that but me. I thought I was the only one. “

  • Behind the scenes: “Axios on HBO” had been working for weeks on a story on Trump’s plans for birthright citizenship, based on conversations with several sources, including one close to the White House Counsel’s office.

The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:

  • “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.”

Be smart: Few immigration and constitutional scholars believe it is within the president’s power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.

  • But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.
  • John Eastman, a constitutional scholar and director of Chapman University’s Center for Constitutional Jurisprudence, told “Axios on HBO” that the Constitution has been misapplied over the past 40 or so years. He says the line “subject to the jurisdiction thereof” originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.

Michael Anton, a former national security official in the Trump administration, recently took up this argument in the Washington Post.

  • Anton said that Trump could, via executive order, “specify to federal agencies that the children of noncitizens are not citizens” simply because they were born on U.S. soil. (It’s not yet clear whether Trump will take this maximalist argument, though his previous rhetoric suggests there’s a good chance.)
  • But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be “unconstitutional.”

Between the lines: Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants, Eastman said.

  • Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call “anchor babies” — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.
  • The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.

The bottom line: If Trump follows through on the executive order, “the courts would have to weigh in in a way they haven’t,” Eastman said.

[Axios]

Reality

Fact is Republicans and Fox News have long targeted only Hispanic or Asian “anchor babies” claiming they were a national security threat. (cough) (cough) racism (cough) (cough)

The Trump administration’s flawed argument is over the line in Section 1 of the 14th Amendment, “subject to the jurisdiction thereof” claiming it only referred to people with full, political allegiance to the U.S., such as citizens or green card holders.

The problem with this thinking is the writings of the authors of the 14th amendment clearly show the line in the amendment refers to the legal obligation to follow U.S. laws within the U.S. border.

Finally, you can’t change the Constitution with an executive order. Can’t happen.

All Trump is doing is riling up his insanely racist base, who are trained by Republican news to fear all foreigners, to show up at the polls one week away.

Media

Pentagon to deploy 5,200 active duty troops to Mexico border as Trump escalates threats against migrant caravan

A week out from the midterm elections, the Pentagon said Monday it is sending 5,200 troops, some armed, to the Southwest border this week in an extraordinary military operation to stop Central American migrants traveling north in two caravans that were still hundreds of miles from the U.S. The number of troops is more than double the 2,000 who are in Syria fighting the Islamic State group.

President Donald Trump, eager to focus voters on immigration in the lead-up to the elections, stepped up his warnings about the caravans, tweeting: “This is an invasion of our Country and our Military is waiting for you!”

His warning came as the Pentagon began executing “Operation Faithful Patriot,” described by the commander of U.S. Northern Command as an effort to help Customs and Border Protection stiffen defenses at and near legal entry points. Advanced helicopters will allow border protection agents to swoop down on migrants trying to cross illegally, he said.

“We’re going to secure the border,” Air Force Gen. Terrence O’Shaughnessy, the Northern Command leader, said at a news conference. He spoke alongside Kevin McAleenan, commissioner of Customs and Border Protection.

Eight hundred troops already are on their way to southern Texas, O’Shaughnessy said, and their numbers will top 5,200 by week’s end. He said troops would focus first on Texas, followed by Arizona and then California.

The number of people in the first caravan has dwindled to 3,500 from about 7,000, though a second one was gaining steam and marred by violence. About 600 migrants in the second group tried to cross a bridge from Guatemala to Mexico en masse on Monday but were met by ranks of Mexican federal police who blocked them from entering. The riverbank standoff followed a more violent confrontation Sunday when the migrants used sticks and rocks against Mexico police. One migrant was killed Sunday night by a head wound, but the cause was unclear.

The first group passed through the spot via the river — wading or on rafts — and was advancing through southern Mexico. That group appeared to begin as a collection of about 160 who decided to band together in Honduras for protection against the gangs who prey on migrants traveling alone and snowballed as the group moved north. They are mostly from Honduras, where it started, as well as El Salvador and Guatemala.

Overall, they are poor, carrying the belongings that fit into a knapsack and fleeing gang violence or poverty. It’s possible there are criminals mixed in, but Trump has not substantiated his claim that members of the MS-13 gang, in particular, are among them.

The president’s dark description of the caravan belied the fact that any migrants who complete the long trek to the southern U.S. border already face major hurdles, both physical and bureaucratic, to being allowed into the United States. Migrants are entitled under both U.S. and international law to apply for asylum, but it may take a while to make a claim. There is already a bottleneck of asylum seekers at some U.S. border crossings, in some cases as long as five weeks.

McAleenan said the aim was to deter migrants from crossing illegally between ports, but he conceded his officers were overwhelmed by a surge of asylum seekers. He also said Mexico was prepared to offer asylum to the caravan.

“If you’re already seeking asylum, you’ve been given a generous offer,” he said of Mexico. “We want to work with Mexico to manage that flow.”

The White House is also weighing additional border security measures, including blocking those traveling in the caravan from seeking legal asylum and preventing them from entering the U.S.

The military operation drew quick criticism.

“Sending active military forces to our southern border is not only a huge waste of taxpayer money, but an unnecessary course of action that will further terrorize and militarize our border communities,” said Shaw Drake of the American Civil Liberties Union’s border rights center at El Paso, Texas.

Military personnel are legally prohibited from engaging in immigration enforcement. The troops will include military police, combat engineers and others helping on the southern border.

The escalating rhetoric and expected deployments come as the president has been trying to turn the caravans into a key election issue just days before the midterm elections that will determine whether Republicans maintain control of Congress.

“This will be the election of the caravans, the Kavanaughs, law and order, tax cuts, and you know what else? It’s going to be the election of common sense,” Trump said at a rally in Illinois on Saturday night.

On Monday, he tweeted without providing evidence: “Many Gang Members and some very bad people are mixed into the Caravan heading to our Southern Border.”

“Please go back,” he urged them. “you will not be admitted into the United States unless you go through the legal process. This is an invasion of our Country and our Military is waiting for you!”

The troops are expected to perform a wide variety of functions such as transporting supplies for the Border Patrol, but not engage directly with migrants seeking to cross the border, officials said. One U.S. official said the troops will be sent initially to staging bases in California, Texas and Arizona while the CBP works out precisely where it wants the troops positioned. U.S. Transportation Command posted a video on its Facebook page Monday of a C-17 transport plane that it said was delivering Army equipment to the Southwest border in support of Operation Faithful Patriot.

The U.S. military has already begun delivering jersey barriers to the southern border in conjunction with the deployment plans.

[CNBC]

Trump: ‘I am bringing out the military’ to stop border crossings

President Trump said in an early morning tweet on Thursday that he is “bringing out the military” to secure the border with Mexico, calling it a “National Emergency.”

“Brandon Judd of the National Border Patrol Council is right when he says on @foxandfriends that the Democrat inspired laws make it tough for us to stop people at the Border,” Trump tweeted. “MUST BE CHANDED [sic], but I am bringing out the military for this National Emergency. They will be stopped!”

Trump tweeted last week that he would use the military to stop a caravan of migrants from Central America, which has reportedly swelled beyond 7,500, if Mexico did not stop it.

“I must, in the strongest of terms, ask Mexico to stop this onslaught — and if unable to do so I will call up the U.S. Military and CLOSE OUR SOUTHERN BORDER!” Trump tweeted.

He said Wednesday night at a rally in Wisconsin that the “military are ready” to help secure the border against the caravan, according to NBC News.

The Mexican ambassador to the U.S., Gerónimo Gutiérrez, said Monday that Mexico will continue to work to halt illegal immigration into its country and work with the Trump administration to block the caravan from passing into the U.S.

Pentagon spokesman Capt. Bill Speaks told The Hill that the military is working through the logistics and is monitoring the situation at the border closely.

“At this time, I can only confirm that the Department of Defense continues to monitor events along the Southwest U.S. border, including the status of the migrant caravan heading north through Mexico,” Speaks wrote in an email.

“We anticipate receiving a request for assistance (RFA) from the Department of Homeland Security and are currently working with DHS to determine the specifics of our support to Customs and Border Protection (CBP).”

[The Hill]

Trump: US to ‘begin cutting off’ aid to countries associated with migrant caravan

President Trump on Monday said that the U.S. will begin to cut off or reduce aid to Honduras, Guatemala and El Salvador as citizens of those countries flee for the U.S. as part of a so-called caravan of migrants.

In a trio of tweets, the president escalated his rhetoric surrounding the group of migrants, declaring a national emergency as they approach the border and claiming that “unknown Middle Easterners” had joined the group.

Trump, in the tweets, did not offer any evidence for the charge that people from the Middle East were among those crossing the border.

“Guatemala, Honduras and El Salvador were not able to do the job of stopping people from leaving their country and coming illegally to the U.S. We will now begin cutting off, or substantially reducing, the massive foreign aid routinely given to them,” Trump wrote in a tweet.

“Sadly, it looks like Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States. Criminals and unknown Middle Easterners are mixed in. I have alerted Border Patrol and Military that this is a National [Emergency]. Must change laws!”

Trump had previously threatened to cut off aid to those countries if they did not act to stop their citizens from fleeing. It’s unclear if Trump will take unilateral action to reduce foreign aid, as Congress is not scheduled to return to Washington until after the midterm elections.

Experts have noted that human rights laws restrict actions a government can take to prevent its citizens from leaving its borders.

The White House did not immediately respond to a request for comment from The Hill about plans to cut foreign aid or to declare a national emergency.

[The Hill]

Trump Rails Against Migrant Caravan in Twitter Tirade: ‘A Disgrace to the Democrat Party’

Donald Trump launched a Twitter attack Sunday against a growing Central American migrant caravan hoping to enter the U.S., stating he plans to block it.

“Full efforts are being made to stop the onslaught of illegal aliens from crossing our Souther (sic) Border,” he wrote Sunday afternoon. “People have to apply for asylum in Mexico first, and if they fail to do that, the U.S. will turn them away. The courts are asking the U.S. to do things that are not doable!”

The Commander-in-Chief then followed-up on that post with a frustrated message calling the caravan “a disgrace to the Democrat Party,” adding, “Change the immigration laws NOW!”

The group of migrants, which has swelled to 5,000 according to the Associated Press, intends to reach the U.S., having overcome efforts by Mexican officials to thwart it.

In a bold assertion made yesterday, Trump told reporters “in many cases, these are hardened criminals.”

The president has been increasingly outspoken on immigration as the November midterms loom.

[Mediaite]

Trump baselessly claims Democrats are behind migrant caravan

Donald Trump thrust a caravan of migrants heading toward the US border into the midterm election campaign, saying at a rally on Thursday night that the race will be “an election of the caravan”.

A group that now numbers about 3,000 people has left Honduras and has reached Guatemala’s border with Mexico, with the ultimate goal of reaching the US – infuriating Trump.

“It’s going to be an election of the caravan. You know what I’m talking about,” Trump told supporters at a rally in Missoula, Montana, declaring his intention to use the migrants’ journey as a bludgeon against Democratic candidates.

There is evidence that Trump’s use of the caravan as a campaign issue may be effective among the Republican base. A recent poll by the Pew Research Center found that 75% of voters who intend to vote for a Republican congressional candidate consider illegal immigration a “very big” problem for the country.

That makes it the top-rated issue for Republican leaning voters. By contrast, only 19% of voters supporting a Democrat called illegal immigration a very big problem. Democratic voters instead called gun violence, the affordability of healthcare and college education, government ethics, the gap between the rich and poor, and a host of other issues very big problems.

Trump claimed, without any supporting evidence, that Democrats were behind the caravan, and raised conspiracy theories that the Central Americans had been paid to come to the United States for political reasons.

“Now we’re starting to find out – and I won’t say it 100%, I’ll put a little tiny question mark at the end. But we’re probably not going to need it, but we have the fake news back there,” he told the crowd, adding a familiar jab at news reporterscovering his campaign appearances.

“A lot of money’s been passing through people to come up and try to get to the border by election day, because they think that’s a negative for us. Number one, they’re being stopped. And number two, regardless, that’s our issue.”

Trump appeared to be referring to a video postedby the Florida representative Matt Gaetz, which he claimed showed women and children being given cash to “storm the US border @ election time”. He suggested without evidence that the source could be “Soros? US-backed NGOs?” referring to George Soros, an American billionaire who is the frequent subject of rightwing conspiracy theories.

A journalist who interviewed people on the ground where the video was taken reported that local merchants had collected money and given it out as aid to migrants. He located the site in Guatemala, not Honduras as the congressman had claimed.

Gaetz later posted a tacit correction, saying he had believed the video was taken in Honduras because it was sent to him by a Honduran official.

Speaking of Democrats, Trump said: “They wanted that caravan. And there are those who say that caravan didn’t just happen. It didn’t just happen.”

Trump threatened on Thursday to close the US-Mexico border and deploy the military if caravan members approach the frontier.

The Mexican government said it was in touch with members of the caravan, some of whom have arrived at the country’s southern border seeking refuge, and will process any legitimate claims for entry in an orderly manner. Mexican officials have said that anyone who enters illegally will be subject to deportation.

Despite the extremist campaign trail rhetoric, the Trump administration has supported a Mexican government plan to work with the United Nations refugee agency to deal with the caravan, USA Today reported.

[The Guardian]

Donald Trump rage-tweets about John Kerry telling Iran to not bother with him

Former Secretary of State John Kerry reportedly met with Iranian leaders and advised them to simply wait out President Donald Trump’s hostility.

This bit of “shadow diplomacy” with the nation Kerry helped broker a nuclear deal with has enraged Trump, who tweeted about it on Thursday night.

Trump suggested that it was “illegal” for Kerry to meet with Iran and tell them “to wait out the Trump Administration!”

Trump then misunderstood or misrepresented the law by stating that Kerry should have been registered as a foreign agent for giving a foreign nation advice as a citizen.

[Raw Story]

Trump Goes After ‘Illegal Mueller Witch Hunt’ Again Following Manafort Deal: ‘Continues in Search of a Crime’

President Donald Trump went after Robert Mueller and the special counsel investigation this morning two days after the Paul Manafort deal was announced.

Trump didn’t tweet about Manafort specifically, but instead attacked the Mueller probe again as “illegal” and grasping at straws:

[Mediaite]

White House Reiterates Trump Call for Investigation of Anonymous Opinion Writer

The White House press secretary on Monday called for the Justice Department to investigate who wrote an anonymous opinion column last week that was critical of President Trump, echoing the president’s demand for such a probe.

“If that individual is in meetings where national security is discussed or other important topics, and they are attempting to undermine the executive branch, that would certainly be problematic and something that the Department of Justice should look into,” Sarah Sanders told reporters at Monday’s briefing.

Mr. Trump last week said he wanted Attorney General Jeff Sessions to launch an investigation into who in his administration penned the column in the New York Times, which was attributed only to a senior administration official and said there was a secret resistance movement at work in Mr. Trump’s administration that aims to curtail his “worst inclinations.”

The president said he was concerned the author may be involved in discussions about national security issues. “I don’t want him in those meetings,” he said.

A Justice Department spokeswoman declined to comment on Monday. When Mr. Trump raised the prospect of an investigation last week, a department spokeswoman said the agency doesn’t confirm or deny investigations.

Presidents typically avoid calling for Justice Department investigations, particularly ones related to their own administrations, to avoid the perception they are interfering in department matters. Mr. Trump has done so on multiple occasions.

A parade of senior members of Mr. Trump’s administration publicly denied writing the column last week.

Ms. Sanders declined on Monday to say what crime the author of the column may have committed. “I’m not an attorney,” she said. “It’s the Department of Justice’s job to make that determination, and we’re asking them to look into it.”

Asked whether the president was aware that the column was protected under the First Amendment, Ms. Sanders said: “It’s less about that part of it, and whether or not somebody is actively trying to undermine the executive branch of the government and a duly elected president.”

She declined to say whether the White House was launching an internal search for the column’s author, whom she called “gutless.” “We’re certainly focused on things that actually matter,” she said.

[Wall Street Journal]

Trump is accusing his administration’s anonymous op-ed writer of treason. That’s nonsense.

Early Wednesday evening, the president issued the following official statement:

While, in isolation, the tweet is maddeningly enigmatic, most observers immediately recognized that President Trump was referring to a New York Times op-ed written by an anonymous senior official in his administration.

In the op-ed, the official describes themselves and their colleagues as “thwarting Mr. Trump’s more misguided impulses until he is out of office,” decries the president’s decision-making as “half-baked, ill-informed and occasionally reckless,” and says that early in the Trump presidency, there were “whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president.”

The last part, presumably, is why Trump is calling the author a traitor.

Treason has a very specific constitutional definition

While there’s obviously a colloquial sense in which “traitor” is used as a general descriptor of disloyal people, the term also has a formal legal definition in the Constitution, and as Sen. Lindsey Graham (R-SC) was swift to note, the op-ed doesn’t qualify:

Graham is right. The op-ed author isn’t guilty of treason. Nor is Trump or any member of his administration or 2016 campaign guilty of treason because of their ties to a Russian election meddling operation.

Article III, Section 3 of the Constitution defines treason as follows:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

As UC Davis’s Carlton Larson, one of the few experts on treason law in academia today, explained to me in 2013, this language provides for two types of treason prosecutions.

The first is an “aid and comfort” prosecution, in which the defendant is accused of aiding the war effort of a country presently at war with the United States. Not just “rivals” but literally at war. Aldrich Ames, the CIA officer turned Soviet spy, got at least 10 people killed through his actions, and FBI Russian spy Robert Hanssen indirectly got at least three killed, but neither was charged with treason because the US was not at war with the Soviet Union/Russian Federation at the time of their actions.

By contrast, successful aid-and-comfort prosecutions include those of American Nazi propagandist Robert Henry Best and of Iva Toguri, who was accused of being “Tokyo Rose,” an English-language Japanese propaganda broadcaster meant to lower American service members’ morale in the Pacific (she was later exonerated and received a presidential pardon).

The second type of treason involves “levying war,” in which the defendants themselves waged war against the United States or an individual state. Aaron Burr, Thomas Jefferson’s first vice president, was prosecuted for treason on these grounds and acquitted, after being accused of assembling forces to create an independent state in the center of North America. John Brown, the abolitionist revolutionary, was convicted of treason against the state of Virginia on levying war grounds after his raid on Harpers Ferry.

The anonymous senior administration official doesn’t meet either standard

Now, the op-ed author is obviously not going to be prosecuted for levying war. That leaves the claim that he or she provided aid and comfort to our enemies by undermining Trump in print.

For that to be the case, though, one would have to determine that the op-ed was designed to aid a specific foreign enemy with whom the US is at war, and there is no such country in the world right now.

Attempting to help al-Qaeda or any associated violent extremist groups might qualify under the Authorization for the Use of Military Force (AUMF) passed after 9/11, and indeed, an American-born al-Qaeda operative was indicted for treasonin 2006 for aiding the organization. The indictment cites the AUMF as well as Osama bin Laden’s statements that al-Qaeda is at war with the United States to demonstrate that by adhering to al-Qaeda, the operative in question, Adam Yahiye Gadahn, was helping a group with which the US was at war.

But the op-ed author rather obviously did not write the New York Times piece with the express purpose of aiding al-Qaeda. Even if he did want to help al-Qaeda (a claim that, again, is preposterous), the treason allegation would be iffy. Consider the Supreme Court case of Cramer v. United States, in which Anthony Cramer, an American man who met with Nazi agents in the US, saw his treason conviction overturned on the grounds that merely meeting the enemy isn’t enough to count as treason.

In his opinion in that case, Justice Robert Jackson asserted that only a defendant who can be found to have “adhered to the enemy” and “intended to betray” the US could be found guilty of treason — even if he did provide aid and comfort to the enemy.

Proving that the op-ed author not only provided aid and comfort to al-Qaeda by the mere act of writing the op-ed, but also consciously intended to betray the United States of America, would be basically impossible. That holds even in the incredibly unlikely world where those were the intentions of, say, United Nations Ambassador Nikki Haley or White House chief economist Kevin Hassett or Russia Ambassador John Huntsman or any of the many other officials floated as being the op-ed author.

Treason is a very limited crime. It’s rarely prosecuted outside of wartime; Gadahn was the first person charged with treason since World War II. And it definitely doesn’t apply to this case.

[Vox]

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