The Post & Email Interviews Atty. Mario Apuzzo on the 14th Amendment, Part 2On Tuesday, August 28, 2018
https://www.thepostemail.com/2018/08/28/the-post-email-interviews-atty-mario-apuzzo-on-the-14th-amendment-part-2/The Post & Email: Do you agree with Victor Davis Hanson that President Trump — or any president — could issue a “clarification†of the 14th Amendment?Atty. Apuzzo: Yes, he can do that. Trump could say in an executive order, “This is my interpretation of the 14th Amendment.†With this question of “subject to the jurisdiction,†is he violating the law by stating his position? He’s not violating the law because there’s no Supreme Court precedent saying that if you’re here illegally and you give birth, that child is a citizen. So if he did that, he wouldn’t be violating anything. It’s a fair interpretation given the current context when you have illegals here giving birth to children. The question is, “Should the nation accept those children as citizens?†So I think it would be fine if Trump signed an executive order and it went to the Supreme Court and they issued a decision.
The Post & Email: Would that equate to Obama’s executive action creating DACA? Is it the same thing?Atty. Apuzzo: Actually, DACA is much worse. Congress has laws on the books which say that if you’re here illegally, you’re subject to deportation (or “removal,†as it’s now called). But Obama’s executive order said, “Oh, no, we’re not going to do that.†The law is cleaner; it says if you’re here illegally and have no status, you have to go back to your country of origin.
The child is not going to be stateless; he or she would take on the citizenship of the parents. Also, in regard to separation of families, the parents have no business staying here. So there’s no evil going on; there’s no harm being done. The parents have a country.
The other questions about asylum are governed by a different law. If they qualify for asylum because of political, religious, or some other kind of persecution, they qualify to be here because that’s what the law says. The laws of our nation say they can be here. If they’re here under those circumstances and give birth to children, I can see the children becoming citizens because they’ve become part of our nation.
It doesn’t matter where they come from; if they qualify under our laws, then of course if their children are born here, I don’t see a problem with making them citizens. You want the children to grow, attach to the nation, be part of the community, go to school, and love their country. That’s how societies are built. But if the parents are here under other circumstances, I think giving citizenship to the children creates more problems than it solves. It creates anger within the children; they become angry at the nation where their parents have to live in the shadows, and they start to blame the nation for all of the problems they experience.
The Post & Email: Can Congress clarify “subject to the jurisdiction thereof†to settle this question?Atty. Apuzzo: Under the 14th Amendment’s Section 5, it says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.†There, they can actually define what “subject to the jurisdiction thereof†means in the context. They could pass legislation. Somebody could say, though, “You can’t to that; you’re trying to amend the Constitution.†Then the Supreme Court would have to look at it.
Also, in Article I, it says that Congress has the power to pass legislation defining different things. Take the American Indians: it was 1924 when they made them citizens with a statute. If you go back to the 14th Amendment, it says they’re not citizens, but if that’s what the 14th Amendment says, then the Congress acted “illegally.†But nobody ever says, “They can’t do that.†If you go back to the 14th amendment, the whole debate was about how Indians were not citizens. So if the Constitution says American Indians are not citizens, how dare the Congress pass a statute saying they’re citizens?
If you look at Article I, Section 8, clause 4, it says that Congress has the power “to establish an uniform Rule of Naturalization†throughout the United States. That gives them a lot of power over naturalization. The question is, “What’s naturalization?†If you look at the 14th Amendment, that naturalized people. If you read the debates it talks about “Indians not taxed.†But if the state decided to tax you, then the state has actually naturalized that Indian. So now you’ve become a citizen. So the argument is that the state was naturalizing people.
The 14th Amendment was really a naturalization of freedmen, of freed slaves who were not citizens. The Civil Rights Act of 1866 naturalized them. They were naturalized, even though they were born here. So then if Congress has the power of naturalization, they can surely tell us what “subject to the jurisdiction thereof†means. They can do it under Article I and under Section 5 of the 14th Amendment which says, “Congress shall have the power to enforce…â€
The Post & Email: Is the Supreme Court the final word on any “appropriate legislation†Congress might pass?Atty. Apuzzo: Here’s the philosophical answer to your question: There is no final word. It’s a circle. It goes around and around and around. How quickly it goes around is a different question. It could go around in just one year, or 200 years could pass, or 500 years could pass. There’s never a final word. There are always new people in office, new citizens with different ideas.
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