Reporters fell into the ‘both sides’ trap while covering birthright citizenship

Reporters, please, for the love of God, don’t do this.

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It is not “unclear” whether Trump can act unilaterally. The Constitution’s text unambiguously says that Trump cannot do this — and the Supreme Court resolved this question more than a century ago. The New York Times actively misled its readers with this tweet, as did CNN when it, too, falsely claimed that it is “unclear” whether Trump has the authority to strip people of their citizenship, and as NPR did as well when it inaccurately said that the constitutionality of Trump’s proposal “isn’t settled.”

To be clear, there is genuine uncertainty about whether a Supreme Court dominated by Republicans — a Court whose newest member appeared to threaten revenge against Democrats during his confirmation hearing — will side with Trump. But if Brett Kavanaugh and his fellow partisans uphold an executive order stripping Americans of their citizenship, they will not be resolving an unsettled question. They will be upending 150 years of settled law, defying the explicit language of the Constitution, and ushering in an age of judicial lawlessness that the United States hasn’t seen since the early days of the Roosevelt administration.

The question of whether the Constitution mandates birthright citizenship is exactly as uncertain as the question of whether the Constitution forbids chocolate cake. Five justices could, as an act of arbitrary power, declare chocolate cake unconstitutional. But that would not be a fair reading of the Constitution.

If you are a reporter, and you claim publicly that it is “unclear” whether an executive order stripping people of citizenship is legal, you are literally helping to enable an atrocity.

It is important that reporters convey this nuance accurately. Lives are literally at stake, as is the fate of thousands of infants who, regardless of what Trump may think, are unambiguously American citizens. As Yale’s Jack Balkin has explained, when journalists treat “off the wall” legal arguments as legitimate, they help place those arguments “on the wall.” Reporting that presents Trump’s frivolous legal claims as debatable creates political space that makes it easier for Republican members of the Supreme Court to embrace those claims.

If you are a reporter, and you claim publicly that it is “unclear” whether an executive order stripping people of citizenship is legal, you are literally helping to enable an atrocity.

What the Constitution actually says

The Fourteenth Amendment provides that “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.” The word “jurisdiction” refers to the government’s power over someone. A person is “subject to the jurisdiction ” of the United States if they are bound by its laws and can be arrested or otherwise sanctioned for violating them.

As the Supreme Court explained more than a century ago, in United States v. Wong Kim Ark these four words — “subject to the jurisdiction” — are not meaningless. There are some children born in the United States, including “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,” who are not subject to U.S. law and thus not entitled to citizenship if they are born in the United States. But the Fourteenth Amendment’s words are clear, and the Supreme Court settled any lingering doubts over their meaning in its 1898 opinion in Wong Kim Ark.

In fairness, Wong Kim Ark was not a unanimous opinion — it was a 6-2 decision handed down over a dissent from Chief Justice Melville Fuller. In his dissent, Fuller argued that the Fourteenth Amendment secretly contains a missing word. “Born in the United States, and subject to the jurisdiction thereof,” he claimed, means that a person was “born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is, as completely as citizens of the United States” (emphasis added). Thus, the child of non-citizens may not be “completely” subject to American jurisdiction because they also may also be “subject” to a “foreign power” — their parents country of origin.

The implications of this dissent are simply breathtaking. Had it become the law — and just in case this point is unclear, a dissenting opinion is, by definition, not the law — Fuller’s dissent would establish that any child of non-citizens, even the child of two lawful permanent residents, would not be a citizen.

The Trump administration, for its part, does not appear likely to go that far. Though the White House has not explained why it believes it can ignore the Fourteenth Amendment, former Trump administration official Michael Anton argued in a Washington Post op-ed last July that “the children of immigrants who came here illegally” are not entitled to birthright citizenship because granting them citizenship would violate some extra-constitutional concept of “consent.”

A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact.

This argument is hard to parse, but Anton appears to claim that the children of undocumented immigrants are not citizens because the United States has not “consented” to their mother’s decision to remain in the country.

In any event, this argument has no basis whatsoever in the text of the Constitution, and even if the Constitution could be read to contain a secret “consent” requirement, that interpretation is foreclosed by Wong Kim Ark.

Wong Kim Ark involved a man born to Chinese nationals within the United States. At the time, the United States had a treaty with China which provided that “nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.” Federal naturalization law permitted “free white persons” and “persons of African descent” to become citizens, but contained no such provision allowing people of Chinese descent to obtain citizenship. Sixteen years before Wong Kim Ark was decided, moreover, Congress passed a law providing that “hereafter no state court or court of the United States shall admit Chinese to citizenship.”

Congress, in other words, made it quite clear that it did not “consent” to any effort to extend citizenship to people of Chinese descent — indeed, it did so with far more clarity than modern immigration law provides regarding the children of undocumented immigrants. But Wong Kim Ark held that these anti-Chinese laws did not matter. Children of Chinese parents born in the United States are American citizens.

Indeed, the very suggestion that the Fourteenth Amendment should be understood to distinguish between “legal” and “illegal” immigrants is itself an anachronism. The Fourteenth Amendment was adopted in 1868, seven years before Congress enacted the very first federal law that sought to exclude some non-citizens from entering the United States. The Page Act of 1875 was the first of several federal laws targeting Chinese nationals for such exclusion. It was soon followed by the Chinese Exclusion Act of 1882.

According to Margaret Hu, a professor at Washington and Lee Law School and an expert on immigration law, “we created an entire regime of exclusion as a result of the Chinese Exclusion Act.” Indeed, the very concept of an “undocumented” immigrant “didn’t come about until we had a document-based immigration system,” which was itself created as part of this broad effort to exclude Chinese nationals.

The framers of the Fourteenth Amendment, in other words, could not possibly have understood that amendment to exclude “illegal” or “undocumented” immigrants because these concepts simply did not exist until the United States began its racist crusade against Chinese immigrants several years later.

How garbage legal arguments become law

So the case against birthright citizenship is utter nonsense. It is at odds with the text of the Constitution. It was rejected by the Supreme Court. And the Trump administration’s apparent take on this question fabricates an entirely novel legal principle from nothing at all. Again, it has exactly as much basis in the Constitution as a legal brief claiming that chocolate cake is unconstitutional.

This cake is not unconstitutional. And if you print a news article claiming that it is unconstitutional, you are a bad journalist.

Sadly, however, the mere fact that the Constitution is clear — or that a particular legal question was already resolved by the Supreme Court — does not guarantee that a majority of that Court will follow the Constitution. As Professor Balkin wrote shortly after the Affordable Care Act had a near death experience in NFIB v. Sebelius , “three years ago, the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy .” Yet the laws opponents moved this “simply crazy” legal argument from “off the wall” to “on the wall” in no small part because they convinced prominent journalists to take it seriously.

Law, and especially constitutional law, is grounded in judgments by legal professionals about what is reasonable: these judgments include what legal professionals think is obviously correct, clearly wrong, or is a matter of dispute on which reasonable minds can disagree. But what people think is reasonable depends in part on what they think that other people think. Arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument. Moreover, it matters greatly who vouches for the argument — whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion.

This is why it is so dangerous for journalists to write that it is “unclear” whether the Fourteenth Amendment says what it says. By reporting that an outlandish legal argument is, in fact, one on which “reasonable minds disagree,” journalists do not simply mislead their readers. They literally can change the outcome of a case raising that outlandish legal argument. They create space for judges who are sympathetic to Trump to reach the decision Trump wants. And they create an aura of legitimacy over such a decision even if it has no basis in law.

I want to be very clear about what I am not saying here. Reporters are journalists and not advocates. Their first duty is to the truth, not to the outcome they prefer. If conservatives make a valid legal argument, a good reporter will say so. I have said so in the past.

But if a reporter claims that it is “uncertain” or “unclear” whether Trump can abolish birthright citizenship, or that this issue “isn’t settled,” that reporter actively spreads a falsehood. They are placing a perceived obligation to convey #bothsides of a story over their duty to tell the truth.

Worse, they are unwittingly inserting themselves into the story. A journalist who falsely claims that it is unclear what the Fourteenth Amendment says may wind up changing how the Fourteenth Amendment is interpreted.

Someday soon, a child will be born to undocumented parents. If Trump moves forward with his attack on birthright citizenship, that child’s fate is now very unclear. In one possible future, the child will enjoy all the privileges of citizenship. He or she will attend American schools, make American friends, work in American businesses, and pay American taxes. In this future, that child thrives in the United States. And they will be universally acknowledged as an American.

In the second possible future, that child is no less an American. But they will live their life in the shadows, unable to make use of their education, and constantly fearful of deportation. In the second future, the child will know poverty and oppression. He or she will be doomed from birth. And he or she may, at any point in their life, be ripped from the only country they have known and exiled to a land that is as foreign to them — or, potentially, as hostile — as it is for any other American.

I am not asking my fellow reporters to bend the truth for this child. I am not asking them to print falsehoods, or even to shade the truth as an act of compassion. All that I’m asking is that they do their job.

And I’m begging them to understand that, if they betray their obligation to the truth, innocent children may suffer dearly.


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