Politics
Opinion: Trump's executive order on birthright citizenship is legally sound
Less than two weeks into this second Trump presidency, the fearmongering has already reached fever pitch. “He can’t do it!” the critics have invariably howled in decrying President Trump’s landmark Day 1 executive order upending the status quo on birthright citizenship for children born in the U.S. to parents who are neither permanent residents nor citizens. The usual suspects in the punditocracy say Trump’s order is blatantly unconstitutional and that it violates settled law. Perhaps it’s even “nativist” or “racist,” to boot!
Like the Bourbons of old, pearl-clutching American elites have learned nothing and forgotten nothing. Because when it comes to birthright citizenship, the virtue-signaling and armchair excoriation is not just silly; it’s dead wrong on the law. Trump’s Jan. 20 executive order on birthright citizenship is legally sound and fundamentally just. He deserves credit, not condemnation, for implementing such a bold order as one of his first second-term acts.
The Citizenship Clause of the 14th Amendment, ratified in 1868, reads: “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 clause’s purpose was to overturn the infamous 1857 Supreme Court case, Dred Scott, and thereby ensure that Black Americans were, and would forever be, full-fledged citizens.
The clause was understood to apply to Black Americans because, even before emancipation, they had long been universally viewed as “subject to the jurisdiction” of the United States — unlike, for example, Native Americans. (Congress did not pass the Indian Citizenship Act, which finally extended birthright citizenship to Native Americans, until 1924.)
Our debate today thus depends on whether, in 1868, foreign citizens or subjects — whether here legally or illegally — were considered “subject to the jurisdiction” of the United States.
They weren’t.
In the post-Civil War Republican-dominated Congress, the 14th Amendment was intended to constitutionalize the Civil Rights Act of 1866. Rep. James Wilson (R-Iowa), who was then House Judiciary Committee chairman and a leading drafter of the 14th Amendment, emphasized that the amendment was “establishing no new right, declaring no new principle.” Similarly, Sen. Jacob Howard (R-Mich.), the principal author of the Citizenship Clause, described it as “simply declaratory of what I regard as the law of the land already.”
The relevant part of the Civil Rights Act of 1866 reads: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” In other words, “subject to the jurisdiction thereof” necessarily excludes those “subject to any foreign power.” As then-Senate Judiciary Committee Chairman Lyman Trumbull (R-Ill.) said during the ratification debate, “subject to the jurisdiction” means subject to the United States’ “complete” jurisdiction — that is, “not owing allegiance to anybody else.”
And so the 14th Amendment, properly understood, does not constitutionally require that a child born in the U.S. to noncitizens be granted citizenship. (Whether Congress passes additional rights-bestowing laws is a separate matter.)
This understanding was unchallenged for decades. In the “slaughterhouse cases” of 1873, Justice Samuel Miller interpreted the Citizenship Clause as “intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” And in the 1884 case of Elk vs. Wilkins, Justice Horace Gray held that “subject to the jurisdiction” means “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
It’s true that Gray inexplicably reversed course in an oft-cited 1898 case, United States vs. Wong Kim Ark. Over a powerful and compelling dissenting opinion, Gray held that there is some level of birthright citizenship for U.S.-born children of lawfully present noncitizens. But even in that wrongfully decided case, the court emphasized that its holding was limited to children of “resident aliens” who were under “the allegiance” of the United States. The court repeatedly emphasized that its holding applied only to children of those legitimately “domiciled” here.
In no world whatsoever does Gray’s pro-birthright citizenship opinion in Wong Kim Ark apply to children of people in the U.S. illegally. Eighty-four years later, in Plyler vs. Doe, the court dropped in a superfluous footnote indicating that Wong Kim Ark also applies to the children of people in the U.S. illegally. But this nonbinding footnote from Justice William J. Brennan Jr., a leading liberal, does not the “law of the land” make.
Extending birthright citizenship that far is, at best, a live and unsettled legal debate. But the original meaning of the 14th Amendment is quite clear. Its authors would have been aghast at the notion that people who broke our laws could then be afforded birthright citizenship for their children. The drafters likely foresaw, as so many today do not, the tremendous perverse incentives induced by such an ill-conceived policy.
The legal eagles so eager to call out President Trump are wrong. And he, yet again, is right.
Josh Hammer is a senior editor-at-large for Newsweek. This article was produced in collaboration with Creators Syndicate. @josh_hammer
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Politics
Some European Allies Fear Trump Is Out to Destroy Them
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During his first term in office, President Trump described the European Union “as a foe,” established “to hurt the United States on trade.”
He repeated the charge at a cabinet meeting on Wednesday, but in more vulgar terms: “The European Union was formed in order to screw the United States. That’s the purpose of it, and they’ve done a good job of it.”
Then he said he was preparing to hit Europe with 25 percent tariffs on cars and other goods.
After Mr. Trump’s embrace of Russia and his warnings that Europe had better fend for itself, the president’s latest attack added to the increasing view of European leaders and analysts that he and his team of loyalists consider America’s traditional allies in Europe as adversaries not just on trade, but on nearly everything.
Some officials and analysts see the Trump administration as merely indifferent to Europe; others see open hostility. But there is a common view that the fundamental relationship has changed and that America is a less reliable and predictable ally.
Mr. Trump has rebuffed NATO and aligned himself with the longstanding, principal threat to the alliance: Russia. Vice President JD Vance has attacked European democracy while calling for the door to be opened to far-right parties. Elon Musk, the billionaire Trump aide, has heaped contempt on European leaders and openly endorsed an extremist party in Germany.
Equally shocking to European leaders, the United States this week refused to condemn Russia’s invasion of Ukraine at the United Nations. It instead broke from its allies and voted with Russia, Belarus and North Korea, all authoritarian governments.
European leaders are scrambling to assess and mitigate the damage. The prime minister of Britain, Keir Starmer, arrives at the White House on Thursday — the second such visit this week, after President Emmanuel Macron of France — still hoping to persuade Mr. Trump not to abandon Ukraine and to remain engaged in Europe. But Mr. Trump describes himself as a disrupter, and Mr. Macron got little for his attempt at seduction.
Friedrich Merz, 69, the conservative politician likely to be Germany’s next chancellor, has expressed strong doubts about the trans-Atlantic relationship he and his country have been committed to for decades.
On Sunday evening, after his party won the most votes in the German election, Mr. Merz said that after listening to Mr. Trump, “it is clear that the Americans, at least this part of the Americans, this administration, are largely indifferent to the fate of Europe.”
He wondered whether the American nuclear umbrella over NATO would remain — and even whether the alliance itself would continue to exist.
“My absolute priority will be to strengthen Europe as quickly as possible so that, step by step, we can really achieve independence from the USA,” he said.
His comments were a remarkable measure of the dismay felt by European leaders over the American reversal of policy on Ukraine and, perhaps more so, for its outright backing of far-right parties that despise European governments and support Russia.
Mr. Merz’s remarks were reminiscent of a 2017 statement by Angela Merkel, then the German chancellor, after contentious alliance meetings with Mr. Trump. “The times in which we could rely fully on others — they are somewhat over,” she said. She encouraged Europeans to “take our fate into our own hands.”
Her comments were considered a potentially seismic shift, but a real reorientation of European security policy never materialized. Matters are more serious now, said Claudia Major, who directs security policy at the German Institute for International and Security Affairs.
“In Munich, Vance declared a culture war and said: ‘Join us or not. We have the right values and you have it wrong,’” she said. His speech, she added, made it clear that “the country that brought us back our freedom and our democracy is turning against us.”
She is not alone in the assessment. Several analysts said the Trump administration’s actions showed that it was not merely indifferent to Europe, but was out to undo it. The distinction holds real consequences for how Europe can respond.
“There is no question the intention is there to destroy Europe, starting with Ukraine,” said Nathalie Tocci, director of Italy’s Institute of International Affairs. “The empowering of the far right is instrumental to the goal of destroying the European Union.”
The reason, she said, is that the Trump administration sees Europe not merely as a competitor, but also as an economic and even ideological threat. It wants to undermine the power of the European Union to regulate trade, competition and hate speech. The latter is a major topic for Mr. Vance, as he criticized what he called news media censorship and political correctness.
The European Union is the largest trading bloc in the world, capable of striking back against Washington economically and in tariff terms, representing the “economic foe” Mr. Trump railed against in his first term.
That power is being used against high-tech and social media companies whose leaders surround and subsidize Mr. Trump, like Mr. Musk, who owns the social media platform X. They, too, have an interest in weakening “the Brussels Effect,” as Anu Bradford of Columbia University Law School called it.
The Brussels Effect is the power of the European Union to establish global rules and norms, and it is particularly important in the realms of climate regulations, digital competition, platform accountability and artificial intelligence.
But if the Trump administration feels it necessary to destroy that threat, then there is little European nations can do to appease the White House, some warned.
If Mr. Trump and his team “are out to push the far right and destroy European democracy, then no amount of European purchasing of American LNG or weapons will matter,” said Ms. Tocci, of Italy’s Institute of International Affairs. By increasing dependency, she added, “it could be a kind of double suicide.”
U.S.-European relations tend to go in cycles, with important strategic debates in the past over Iraq or Afghanistan or even Vietnam. But now the clashes are simultaneously ideological, strategic and economic, said Camille Grand, a former NATO and French official with the European Council on Foreign Relations.
“Facing hostility on all three fronts at once is quite a shock to Europeans,” said Mr. Grand. “Adding all three together you can wonder whether you are no longer a partner but a rival and, perhaps, even an adversary.”
Every country in Europe is doing a reassessment of where it is vis-à-vis Washington, he said. What isn’t clear is whether, as in Mr. Trump’s first term, “you have an unpleasant roller-coaster ride that leaves you sick but you end up where you started, or whether the whole relationship now derails.”
Linas Kojala, director of the Geopolitics and Security Studies Center in Vilnius, Lithuania, urges calm, because “there is no real alternative to the U.S. security guarantee” for a long time to come. “Declaring the trans-Atlantic relationship has collapsed would be like stepping off a ship in the middle of the ocean with no other vessel in sight.”
So for now, he said, “Europe must swallow” the Trump criticism and “do everything possible to keep the relationship intact.”
But it is unlikely to return to where it was, Alex Younger, a former chief of Britain’s foreign intelligence service, MI6, told the BBC last week. “We are in a new era where, by and large, international relations aren’t going to be determined by rules and multilateral institutions,” he said, but “by strongmen and deals.”
Matthew Kroenig, a former defense department official who is now at the Atlantic Council in Washington, calls himself a “normal Republican” and says that “there has been a bit too much hysteria over the past couple of weeks.”
After all, Mr. Kroenig said, the first Trump term was also marked by “a lot of tough rhetoric against allies and a lot of deferential language toward Putin, but in the end, NATO was strengthened.”
Others are less sure.
Mr. Trump has been engaged in “a policy of rapid, unilateral concession of long-held positions on fundamental interests to persuade the aggressor to stop fighting,” said Nigel Gould-Davies of the International Institute for Strategic Studies, speaking of Russia in Ukraine.
“The established name for such a policy,” he said, “is ‘strategic surrender.’”
Whether it will produce the outcome Mr. Trump desires is not clear, he said. What is clear is that it is undermining allied trust in the credibility and common sense of the United States.
It is imperiling old allies in Europe.
And it is “making Russia a more powerful, assertive and attractive ally to America’s adversaries around the world,” he said.
Politics
Chief Justice John Roberts pauses judge’s order for Trump admin to pay foreign aid contractors by midnight
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U.S. Supreme Court Justice John Roberts on Wednesday paused a federal judge’s order that required the Trump administration to pay around $2 billion in foreign aid funds to contractors by midnight.
The ruling comes after the Trump administration asked the Supreme Court for an emergency order to block the release of U.S. Agency for International Development (USAID) funding, which the federal judge had required by midnight. Officials had said they would not be able to comply with the judge’s order.
The Trump administration said U.S. District Judge Amir H. Ali’s order had created “an untenable payment plan at odds with the President’s obligations under Article II to protect the integrity of the federal fisc and make appropriate judgements(sic) about foreign aid – clear forms of irreparable harm.”
Any response from the groups that are fighting the Trump administration is due before Friday at 12 p.m., meaning the pause could potentially be relatively short-lived.
USAID INSTRUCTIONS FOR FIRED EMPLOYEES GIVES THEM 15 MINUTES TO GATHER BELONGINGS FROM SHUTTERED DC BUILDING
An American flag and USAID flag fly outside the USAID building in Washington, D.C., U.S., February 1, 2025. (REUTERS/Annabelle Gordon)
The Trump administration said it was eliminating more than 90% of USAID’s foreign aid contracts and $60 billion in overall U.S. assistance around the world, putting numbers on its plans to eliminate the majority of U.S. development and humanitarian help abroad.
The cuts detailed by the administration would leave few surviving USAID projects for advocates to try to save in what are ongoing court battles with the administration.
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Flowers and a sign are placed outside the headquarters of the U.S. Agency for International Development, or USAID, Friday, Feb. 7, 2025, in Washington. (AP Photo/Jose Luis Magana)
Wednesday’s disclosures also give an idea of the scale of the administration’s retreat from U.S. aid and development assistance overseas, and from decades of policy that foreign aid helps American interests by stabilizing other countries and economies and building alliances.
TRUMP ADMIN TO SLASH 1,600 USAID POSITIONS JUST BEFORE MIDNIGHT
The memo said officials were “clearing significant waste stemming from decades of institutional drift.” More changes are planned in how USAID and the State Department deliver foreign assistance, it said, “to use taxpayer dollars wisely to advance American interests.”
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President-elect Donald Trump and Elon Musk pose for a photo during the UFC 309 event at Madison Square Garden on November 16, 2024 in New York City. (Jeff Bottari/Zuffa LLC)
President Donald Trump and ally Elon Musk have hit foreign aid harder and faster than almost any other target in their push to cut the size of the federal government. Both men say USAID projects advance a liberal agenda and are a waste of money.
The administration has filed an emergency appeal to the Supreme Court in one other case so far, arguing that a lower court was wrong to reinstate the head of a federal watchdog agency after Trump fired him.
The Associated Press contributed to this report.
Fox News’ Bill Mears and Shannon Bream contributed to this report.
Politics
Border Patrol sued for tactics used in Kern County immigration raid
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ACLU attorneys representing the United Farm Workers and five Kern County residents have sued the head of the Department of Homeland Security and U.S. Border Patrol officials, alleging the Border Patrol’s three-day raid in the southern San Joaquin Valley in early January amounted to a “fishing expedition” that indiscriminately targeted people of color who appeared to be farmworkers or day laborers.
The complaint, filed Wednesday in federal court in the Eastern District of California, alleges that agents from the Border Patrol’s El Centro sector violated protections afforded by federal law and the U.S. Constitution when they rounded up and deported scores of laborers in the country without legal authorization. It seeks class-action relief for everyone subjected to the tactics, which the lawsuit describes as “lawless sweeps, indiscriminate arrests, and coercive expulsions.”
“It’s clear that this was a coordinated operation intended to sweep up as many people as possible, not based on any individualized reason, but based on their apparent race, ethnicity or occupation; arrest them and expel as many of them from the country as possible, regardless of whether they knew their rights or the consequences,” said Bree Bernwanger, an attorney with the ACLU of Northern California, one of three ACLU affiliates representing plaintiffs in the case.
Asked to comment on the allegations, a spokesperson for the Department of Homeland Security said Border Patrol enforcement actions are “highly targeted.” Any alleged or potential misconduct by agents would be referred for investigation, the agency said.
A spokesperson for the Border Patrol’s El Centro sector said the agency does not comment on pending litigation.
The El Centro sector — headquartered more than 300 miles from Kern County’s sprawling farm fields and orchards — led the unusual January raid at the tail end of the Biden administration. Chief Agent Gregory Bovino, a 25-plus-year veteran who leads the Imperial County unit, headed up the operation without the involvement of U.S. Immigration and Customs Enforcement. He is named as a defendant in the lawsuit.
Three former Biden administration officials, who requested anonymity because they were not authorized to share operational details, told The Times that Bovino “went rogue” with the January raid. No higher-ups knew about the operation before watching it unspool in real time, two of the former officials said.
In official statements, Bovino has justified the raid by noting that the sector’s area of responsibility stretches from the border to the Oregon line, “as mission and threat dictates.” Border Patrol officials have said the raid, dubbed Operation Return to Sender, resulted in the arrests of 78 immigrants in the country illegally, including a child rapist. The agency has not specified how many of the immigrants detained had criminal records.
Advocates on the scene, meanwhile, said the operation indiscriminately targeted Latino farmworkers commuting from the fields along California Route 99 and day laborers soliciting work in the parking lots of big box stores. They estimate close to 200 people were detained.
The Trump administration’s threat of mass immigration raids has sent shock waves across the Central Valley, where a largely immigrant workforce helps harvest a quarter of the food grown in the U.S.
(Brian van der Brug / Los Angeles Times)
According to the legal complaint, agents swarmed businesses where farmworkers and day laborers gather, and pulled over vehicles in predominantly Latino neighborhoods, targeting people of color and questioning them about their immigration status. The complaint accuses Border Patrol agents of employing multiple unlawful practices. Among them: detaining people without reasonable suspicion that they were in the country unlawfully, in violation of the 4th Amendment’s prohibitions on unreasonable searches and seizures.
If people declined to answer questions about their immigration status, according to the complaint, agents conducted searches without warrants or consent. In some cases, the complaint alleges, when people who had been pulled over in their cars declined to answer questions, agents responded by “smashing the car’s windows, slashing the car’s tires, and/or ordering or physically pulling people out of vehicles and handcuffing them.”
At the time of the raid, the U.S. Border Patrol said Operation Return to Sender “focused on interdicting those who have broken U.S. federal law, trafficking of dangerous substances, non-citizen criminals, and disrupting the transportation routes used by Transnational Criminal Organizations.”
Instead, according to the complaint, the operation swept up people with pending immigration applications, no criminal histories and established homes in the community. Many of those deported left behind spouses and U.S.-born children, advocates told The Times.
Under federal law, an immigration enforcement officer may, without a warrant, interrogate people about their right to be in the country, as long as people are not involuntarily detained for questioning. More intrusive encounters require reasonable suspicion that a crime is afoot, according to the Congressional Research Service.
The lawsuit offers multiple examples of people it contends were treated unlawfully during the January raid.
Wilder Munguia Esquivel, a 38-year-old Bakersfield resident who works as a day laborer and handyman, was standing outside Home Depot on Jan. 7 when agents in unmarked cars arrived, demanding to see people’s immigration papers, according to the complaint.
When Munguia Esquivel backed away, the complaint says, he was handcuffed and agents rifled through his wallet.
“At no point did the Border Patrol agent identify himself, explain to Mr. Munguia Esquivel why he had stopped him, explain why he had arrested him, or produce a warrant,” the complaint says. “At no point did he ask Mr. Munguia Esquivel about his family, employment or community ties, or undertake any evaluation of whether he posed a flight risk.”
Munguia Esquivel, a plaintiff in the lawsuit, was transported to El Centro and eventually released, according to the complaint.
But scores of other laborers detained in the raid were transported to the El Centro Station for processing, then pressured to sign voluntary deportation agreements, according to the complaint.
Agents coerced people into signing the agreements, the lawsuit says, by detaining them in holding cells without access to sleeping quarters, showers, hygiene products or sufficient food and denying them communication with attorneys or family members. It says agents directed people to sign their names on an electronic screen without informing them of their 5th Amendment right to an immigration hearing. They received a copy of the form they had signed only after they had been expelled to Mexico, it says.
At least 40 of the people arrested were expelled across the border after accepting voluntary departure, the complaint says.
President Trump ran for office promising the largest deportation effort in U.S. history, initially focusing his rhetoric on tracking down undocumented immigrants who have been accused of violent crimes. His administration now says it considers all immigrants in the U.S. without legal authorization to be criminals, because they have violated immigration laws.
The complaint asks the court to compel the Border Patrol and its parent agencies, the Department of Homeland Security and U.S. Customs and Border Protection, to conduct operations in compliance with the Constitution and federal statutes.
“Without court intervention, we have every reason to expect that Operation Return to Sender was just the first example of what we will continue to see from Border Patrol,” Bernwanger said.
This article is part of The Times’ equity reporting initiative, funded by the James Irvine Foundation, exploring the challenges facing low-income workers and the efforts being made to address California’s economic divide.
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