The birthright question

WASHINGTON—Top scholars and leading politicians waded into a hot debate over birthright citizenship after President Donald Trump indicated that he wants to sign an executive order ending the practice. In a interview with Axios on Monday for HBO, the president said, “It was always told to me that you needed a constitutional amendment. Guess what? You don’t. You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”

While Trump has long opposed birthright citizenship—the right to citizenship for babies born to noncitizens in the United States—he has ramped up his rhetoric on immigration issues in recent weeks. He repeatedly pointed to a caravan of Central American migrants making their way through Mexico to the U.S. border as an example of the need for a border wall and reformed immigration laws. The caravan, combined with the debate over birthright citizenship, could fire up the Republican base in next week’s midterm elections, which will determine the balance of power in Congress for the next two years.

The 14th Amendment to the U.S. Constitution, ratified in 1868, nullified the Supreme Court’s 1857 Dred Scott v. Sandford decision that barred freed slaves and their children from becoming U.S. citizens. The amendment granted citizenship to everyone born in the United States who is “subject to the jurisdiction thereof.”

Scholars and politicians have historically debated whether the phrase “subject to the jurisdiction” includes the children of immigrants. Michael Anton, a researcher and lecturer at Hillsdale College and a former national security official in the Trump administration, argued that the phrase should be based on allegiance alone.

Judge James Ho, a recent Trump appointee to the 5th U.S. Circuit Court of Appeals, said that “subject to the jurisdiction” refers to anyone who has to follow U.S. laws—which apply to immigrants and noncitizens. The only group not subject to U.S. jurisdiction is foreign diplomats and their families. Ho said the 14th Amendment restored the English common law standard of jus soli, or citizenship by place of birth, after the Dred Scott decision denied it.

In 1898, the Supreme Court overturned the Chinese Exclusion Act, which denied citizenship to Chinese immigrants. The court held that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory ... including all children here born of resident aliens.”

The status of illegal immigrants was not explicitly decided in the case, something Vice President Mike Pence pointed out shortly after Trump’s Axios interview. The Supreme Court “has never ruled on whether the language of the 14th Amendment … applies specifically to people who are in the country illegally,” Pence said.

Beyond the legal question, the possibility of ending birthright citizenship raises a social question. Some scholars have pointed out that revoking birthright citizenship could create a permanent underclass—“a shadow population of American-born people who have no state, no legal protection, and no real rights that the government is bound to respect,” constitutional law professor Garrett Epps wrote for The Atlantic. Trump has not specified whether he wants to end birthright citizenship for future children or revoke the citizenship of current children born to noncitizens.

Speaker of the House Paul Ryan, R-Wis., challenged the president’s plan on procedural grounds. “You cannot end birthright citizenship with an executive order,” Ryan said in an interview with radio station WVLK in Lexington, Ky. “We didn’t like it when [former President Barack] Obama tried changing immigration laws via executive action, and obviously, as conservatives, we believe in the Constitution.”

Senate Judiciary Committee chairman Sen. Chuck Grassley, R-Iowa, also signaled he believes Congress should take the lead on such an action. Sen. Lindsey Graham, R-S.C., said he would introduce legislation challenging birthright citizenship, calling it a “magnet for illegal immigration.”

Trump slammed Ryan on Twitter, and insisted that “many legal scholars agree” with his interpretation. If he follows through with his plan, he will almost certainly face a legal challenge, something he expects. “This case will be settled by the U.S. Supreme Court!” he tweeted Wednesday.

As goes Texas …

Sen. Ted Cruz, R-Texas, is facing a surprisingly close reelection campaign against progressive Democratic Rep. Beto O’Rourke, as Republicans seek to maintain their slim majority in the Senate.

Cruz is favored to win, but his margins are unexpectedly tight in a state that hasn’t elected a Democrat to statewide office in a quarter century. An average of polls by RealClearPolitics shows Cruz with a 6.5 percentage point lead as of Tuesday. The nonpartisan Cook Political Report lists the race as a toss-up, while other observers say the seat is likely to remain Republican. Polls on the state gubernatorial race, in contrast, show Republican incumbent Gov. Greg Abbott leading by an average of 20 points.

Texas-based Republican political strategist Jerod Patterson believes Cruz will win reelection but said the race likely marks a blue shift in a previously reliably red state.

“Now is where the pendulum starts to swing back,” Patterson told me, pointing to unexpectedly competitive races for the Texas statehouse, the judiciary, and other local contests.

The shifting demographics of the state, with a growing Hispanic population and an influx of younger voters, could provide Democrats a potential foothold. Those changes could start to affect results in the suburbs around cities like Houston, Austin, and Dallas, Patterson said.

Texans are enthused about the Senate race, with participation in the first week of early voting in the largest counties already surpassing turnout over the entire two-week early voting period in the last midterm election, according to Derek Ryan, who is analyzing early voting patterns. Early voting was also drawing many who had not participated in previous midterm elections. Nationally, high turnout has historically favored Democrats, but voters who participated in Republican primaries still hold an edge in Texas early voting, according to data.

The race is drawing national attention in part because of Cruz’s high profile within the Republican Party. Democratic donors have poured funds into O’Rourke’s campaign coffers, setting a record for a Senate candidate. He brought in $38 million in the third quarter, largely from small donors across the country, compared to $12 million for Cruz in the same period, according to the Center for Responsive Politics, which tracks political contributions.

Cruz, who was an outspoken conservative candidate during the 2016 Republican presidential primaries, has embraced President Donald Trump during his reelection bid despite their bitter rivalry two years ago.

“His entire political calculus has been about accumulating a record with which he can win with the Republican base nationally,” Patterson said.

O’Rourke, meanwhile, has sought to appeal to voters across the state, visiting every county, not just those in which Democrats have traditionally done well. He has pushed progressive positions on healthcare and other issues, while also trying to appear as a post-partisan political figure. —Anne K. Walters

Making every vote count

A federal judge this week ruled in favor of changing how absentee ballots in Georgia are evaluated to address concerns that voters were being disenfranchised over discrepancies in their signatures on the ballot. With the midterm elections next week, voting rights and absentee ballot procedures across the country are under greater scrutiny. In 2016, nearly 1 in 4 votes were cast by mail-in ballot, according to the U.S. Election Assistance Commission.

U.S. District Judge Leigh Martin May ordered Georgia officials not to disqualify absentee ballots on which the signature did not exactly match voter records. Instead, the state must inform voters of the problem and give them a chance to resolve the issue.

“The court remains confident that the risk of rejecting qualified absentee voters is high,” May said, noting that the action was “not so burdensome as to outweigh the state-conferred right to vote through the absentee process.”

Georgia Secretary of State Brian Kemp, the Republican candidate for governor, had sought to block implementation of the earlier decision because he said it was onerous and amounted to changing policy during the election.

The American Civil Liberties Union and voting rights groups sued the state over its handling of absentee ballots, arguing voters were being denied due process without an opportunity to appeal. They said normal variations in signatures were common among the elderly, disabled, or those who spoke English as a second language.

Hundreds of ballots had reportedly been rejected under the rules, especially in the state’s most populous counties. —A.K.W.