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Boston Globe
14-05-2025
- Politics
- Boston Globe
At Supreme Court, a once-fringe birthright citizenship theory takes the spotlight
For more than a century, most scholars and the courts have agreed that though the 14th Amendment was added to the Constitution after the Civil War, it was not, in fact, all about slavery. Instead, courts have held that the amendment extended citizenship not just to the children of former slaves but also to babies born within the borders of the United States. Get Starting Point A guide through the most important stories of the morning, delivered Monday through Friday. Enter Email Sign Up The notion that the amendment might not do so was once considered an unorthodox theory, promoted by an obscure California law professor named John Eastman and his colleagues at the Claremont Institute, a conservative think tank — the same professor who would later provide Trump with legal arguments he used to try to overturn the results of the 2020 presidential election. Advertisement The story of how the theory moved from the far edges of academia to the Oval Office and, on Thursday, to the Supreme Court, offers insight into how Trump has popularized legal theories once considered unthinkable to justify his immigration policies. Advertisement 'They have been pushing it for decades,' said John Yoo, a law professor at the University of California Berkeley School of Law and a top lawyer in the George W. Bush administration. 'It was thought to be a wacky idea that only political philosophers would buy. They've finally got a president who agrees.' The White House did not respond to requests for comment. Trump promoted the theory during his first campaign but did not act on it until his second term. He signed an executive order on his first day to end birthright citizenship for the children of immigrants in the country illegally and some temporary foreign residents. Legal challenges were swift and emphatic. Challengers pointed to the text of the 14th Amendment, which states, '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.' Proponents of the policy have pointed to birthright citizenship as a cornerstone of what it means to be an American, part of the national ethos of the country as a place that is open to everyone, regardless of faith, color, or creed. Of the world's 20 most developed countries, only Canada and the United States grant automatic citizenship to children born within its borders. In a brief to the Supreme Court, an immigrant advocacy group argued that 'birthright citizenship is at the core of our nation's foundational precept that all people born on our soil are created equal, regardless of their parentage.' State attorneys general who are challenging the policy weighed in with a brief that argued that the Supreme Court had settled the question in the landmark 1898 case of United States v. Wong Kim Ark, when the court found that a man born in San Francisco to Chinese parents was a citizen. Advertisement So far, courts have agreed. Judges in Washington state, Massachusetts, and Maryland quickly instituted nationwide pauses on Trump's policy. In oral arguments this week, the justices will primarily consider whether federal judges have the power to order these temporary pauses, known as nationwide injunctions. But the question of birthright citizenship will form the backdrop. In an interview, Eastman said he developed his views on birthright citizenship after the terrorist attacks on Sept. 11, 2001. Back then, Eastman, who had clerked for Justice Clarence Thomas, was a law professor at Chapman University in Orange County, California, and director of the Center for Constitutional Jurisprudence at the Claremont Institute. In late November 2001, a man named Yaser Esam Hamdi was taken into custody by US forces in Afghanistan and transferred to the military base and prison at Guantánamo Bay. Officials learned Hamdi was a US citizen. His mother, a Saudi national, had given birth to him while the family was living in Baton Rouge, La., where Hamdi's father was working as a chemical engineer. Because Hamdi was a citizen, authorities believed they could no longer hold him as an 'enemy combatant' in Guantánamo Bay, where he was considered beyond the reach of the full legal protections of federal courts. They transferred him to a naval brig in Norfolk, Va. In a 2004 friend-of-the-court brief in the case, Eastman argued that the idea that citizenship was automatically conferred on all children born on American soil was a 'generally accepted though erroneous interpretation' of the 14th Amendment that was 'incorrect, as a matter of text, historical practice and political theory.' Advertisement Although the idea that children born in the United States automatically become citizens has deep roots in the common law, it was not adopted in the text of the Constitution until 1868, as part of the 14th Amendment. It came in a sentence that overturned Dred Scott, the 1857 Supreme Court decision that affirmed slavery and helped prompt the Civil War. Eastman claimed that nowhere during the debate over the 14th Amendment had lawmakers agreed to include temporary visitors. The justices rejected this view, finding that the Constitution's due process protections applied to Hamdi. Still, for years afterward, Eastman and Yoo publicly debated the issue, with Eastman arguing his theory that birthright citizenship was not in the Constitution and Yoo arguing that it was. For much of that time, the debate felt abstract, Yoo said, of interest mostly to legal scholars. 'Never has an abstract idea had such enormous policy effects,' he said. 'It's like it almost just jumped from law review articles to the White House.' That leap happened when Trump ran for president in 2015. In an interview with Fox News personality Bill O'Reilly in August 2015, Trump outlined his plans to overhaul the immigration system. O'Reilly seemed skeptical at first, and then increasingly frustrated. O'Reilly pointed to the 14th Amendment as an impediment to Trump's plan. But Trump responded, 'I think you're wrong about the 14th Amendment.' 'I can quote it — do you want me to quote you the amendment,' O'Reilly said, nearly shouting. 'If you're born here, you're an American — period! Period!' 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New York Times
14-05-2025
- Politics
- New York Times
At Supreme Court, a Once-Fringe Birthright Citizenship Theory Takes the Spotlight
Shortly after the Supreme Court announced in April that it would consider the nationwide freeze on President Trump's executive order ending birthright citizenship, he gleefully spoke to reporters in the Oval Office. Mr. Trump said that he was 'so happy' the justices would take up the citizenship issue because it had been 'so misunderstood.' The 14th Amendment, he said — long held to grant citizenship to anyone born in the United States — is actually 'about slavery.' 'That's not about tourists coming in and touching a piece of sand and then all of the sudden there's citizenship,' Mr. Trump said, adding, 'That is all about slavery.' For more than a century, most scholars and the courts have agreed that though the 14th Amendment was added to the Constitution after the Civil War, it was not, in fact, all about slavery. Instead, courts have held that the amendment extended citizenship not just to the children of former slaves but also to babies born within the borders of the United States. The notion that the amendment might not do so was once considered an unorthodox theory, promoted by an obscure California law professor named John Eastman and his colleagues at the Claremont Institute, a conservative think tank — the same professor who would later provide Mr. Trump with legal arguments he used to try to overturn the results of the 2020 presidential election. The story of how the theory moved from the far edges of academia to the Oval Office and, on Thursday, to the Supreme Court, offers insight into how Mr. Trump has popularized legal theories once considered unthinkable to justify his immigration policies. Want all of The Times? Subscribe.
New York Times
04-05-2025
- Politics
- New York Times
These Thinkers Set the Stage for Trump the All-Powerful
With a blitz of moves in his 100 days in office, President Trump has sought to greatly enlarge executive power. The typical explanation is that he's following and expanding a legal idea devised by conservatives during the Reagan administration, the unitary executive theory. It's not even close. Mr. Trump has gone beyond that or any other mainstream notion. Instead, members of his administration justify Mr. Trump's instinctual attraction to power by reaching for a longer tradition of right-wing thought that favors explicitly monarchical and even dictatorial rule. Those arguments — imported from Europe and translated to the American context — have risen to greater prominence now than at any time since the 1930s. Mr. Trump's first months back in office have provided a sort of experiment in applying these radical ideas. The alarming results show why no one in American history, up until now, has attempted to put them into practice — and why they present an urgent threat to the nation. The tradition begins with legal theorist Carl Schmitt and can be followed in the work of the political philosopher Leo Strauss, thinkers affiliated with the Claremont Institute, a California-based think tank with close ties to the Trump movement, and the contemporary writings of the legal scholar Adrian Vermeule. Many on the right have bristled at presidential power being constrained over the past century by two waves of administrative reform. The first dates back to the early 20th century and the rise of the bureaucratic-regulatory state during the Progressive and New Deal eras. The second wave emerged in the 1970s, as Congress responded to the abuses of power by Richard Nixon. The presidency has evolved to become an office exercising general (and often passive) oversight of vast departments and agencies, which are staffed by career civil servants who stay on across administrations. As a result, presidents are constrained by layers of lawyers and others determining what is allowable based on law and precedent. This evolution came about in part because the presidency can be the office most susceptible to despotic or tyrannical rule. That's where the more radical critique emanating from the hard right focuses its attention. Schmitt (who died in 1985) developed his most influential ideas during the turbulence and ineffectual governance of Germany's Weimar Republic. In his view, liberalism has a fatal weakness. Its aversion to violent conflict drives it to smother intense debate with ostensibly neutral procedures that conceal the truth about the nature of politics. That truth is revealed in emergency situations: Politics often requires making existential decisions about the good of the nation — and especially about who should be considered its friend and who its enemy. Liberalism's supposed incapacity to make such primordial distinctions led Schmitt to the view that there exists 'absolutely no liberal politics, only a liberal critique of politics.' For Schmitt, someone must serve in the role of sovereign decider. Legislatures aren't fit for it, because they easily devolve into squabbling factions. Neither are administrative bureaucracies, because they often defer to established rules and debate without resolution. Both contributed to making the later years of Weimar what Schmitt described, in a lecture from 1929, as an 'age of neutralizations and depoliticizations.' That leaves the executive as the best option for decisive action. It was this line of reasoning that led Schmitt to throw his support behind Adolf Hitler's efforts in 1933 to transform himself into Germany's sovereign decider. Few on the American right today explicitly credit Schmitt for shaping their views of presidential power. That isn't true of Leo Strauss (who died in 1973), the German-Jewish émigré from Weimar who has influenced several generations of conservative academics and intellectuals in the United States. In his most influential book, 'Natural Right and History,' Strauss subtly tames Schmitt's views of politics, without mentioning him by name, and presents them as the pinnacle of political wisdom. Strauss sets out a timeless moral standard of what is 'intrinsically good or right' in normal situations as the just allocation of benefits and burdens in a society. But there are also 'extreme situations' — those in which 'the very existence or independence of a society is at stake.' In such situations, the normally valid rules of 'natural right' are revealed to be changeable, permitting officeholders to do whatever is required to defend citizens against 'possibly an absolutely unscrupulous and savage enemy.' Who gets to determine 'extreme situations?' Strauss answers that it is 'the most competent and most conscientious statesman' who decides. The statesman must also identify foreign enemies as well as 'subversive elements' at home. In recent decades, presidents of both parties have used emergency declarations to enhance their freedom of action. Barack Obama declared a dozen emergencies during his eight years in office. Mr. Trump declared 13 in his first presidency, while Joe Biden declared 11. In only the first few months of his second term, Mr. Trump has declared eight. He's invoked the authority therein to deploy the military to the southern border and to impose tariffs. He invoked the Alien Enemies Act to give himself the power — normally reserved for wartime — to round up and deport immigrants he classifies as constituting an 'invasion or predatory incursion' of the nation. (The Supreme Court recently blocked the deportation of migrants under this law.) The Claremont Institute extended this intellectual line in America. Founded in 1979 in California by four students of Harry Jaffa, who studied with Strauss in the 1940s, the institute has cultivated a distinctive account of American history. It begins with veneration for the country's founding, which institutionalized timeless moral verities. It continues with reverence for Abraham Lincoln's displays of statesmanship, both before and during the Civil War, which deepened and perfected the American polity by fulfilling the promise of its founding. For the next half-century, the United States became the living embodiment of the 'best regime' described in the texts of ancient political philosophers. Then came the fall: First Woodrow Wilson and the Progressive movement, and then the New Deal during the Great Depression, introduced the notion of a 'living Constitution' that evolves to permit the creation of an administrative state staffed by experts. This form of administrative bureaucratic rule, often aided and abetted by the judicial branch, stifles statesmanship. That's why Claremont-affiliated scholars have been at the forefront of attempts simultaneously to roll back the administrative state and to consolidate executive power in the office of the president. Finally, Adrian Vermeule, of Harvard Law School, combines explicit Schmittian influence with a desire to revive and apply elements of medieval political theology to the contemporary understanding of the presidency. In an essay published last July, Mr. Vermeule builds on the reasoning deployed by the Supreme Court in several recent decisions to lay out a maximalist theory that 'goes to the outer logical limits of presidential power.' This theory asserts that executive power is never 'given to subordinate officers or administrative agencies in their own right.' Rather, there is only the executive power of the president, 'which alone incarnates and gives legal life to the legal authority of all his subordinates.' What this implies is that no executive-branch employee is independent of the president or can resist, let alone defy, his will. What ties together these thinkers? A conviction that executive governance combines maximal leeway to act with maximal power to execute decisions without second-guessing from civil servants or lawyers or deference to judges. No one has contributed more to this view in the administration and connected the president to these intellectual precursors than Russell Vought, the director of the Office of Management and Budget. Many of Mr. Trump's boldest assertions of executive power can be traced back to proposals from Mr. Vought in Claremont-affiliated arenas. Here you can see why, for instance, Mr. Trump fired inspectors general at more than a dozen federal agencies, despite law requiring the president to give Congress 30 days notice of, and provide cause for, his intent to dismiss them. You can also see why Mr. Trump rejects the very idea of a person or office in the executive branch being independent of his will. He thinks he has unlimited enforcement discretion, allowing him to choose not to enforce duly enacted legislation, as he has done with the law banning TikTok. The great danger of such a breathtakingly expansive view of executive power is that it threatens to transform the American presidency into a dictatorial office that disregards the separation of powers and seeks unchallenged primacy in its place. It also asserts for its expansive authority a near-permanent state of emergency. In a liberal democracy, this can't be the end of the story. It might be necessary in a genuine crisis for a president to act beyond the bounds of ordinary moral and legal standards to secure the common good, but it is extraordinarily risky to begin treating a state of emergency as a new normal. Such imperial governance has already led to mass deportations of supposed Venezuelan gang members — including Kilmar Abrego Garcia — to a notorious prison in El Salvador without due process. It has also led Mr. Trump to force a showdown over the impoundment of congressionally appropriated funds, to disband whole agencies that were authorized by Congress, and to disregard rulings, on more than one occasion already, from federal judges. That may leave liberals in the somewhat surprising position of having to remind conservatives about the crucial importance of personal character and good faith in politics. The stronger the executive, the more important it is to reserve the office for the most upstanding among us. Mr. Trump's willingness to bend or break rules that typically constrain presidents might make him an effective wrecking ball for a right-wing agenda. But enhancing the vigor and authority of the presidency also undeniably increases the risk of dictatorial government. The best way to mitigate that risk is to insist that presidents accept the constraints of ruling within a constitutional order defined by the separation of powers. And the only way to ensure they will accept such limits may be to demand that those who seek the nation's highest office display an understanding of those limits and accept them as a necessary bulwark against tyranny. There is room to increase the ability of presidents to act, but only if they show themselves worthy of being entrusted with those dangerous powers.
Yahoo
24-04-2025
- Politics
- Yahoo
US names Michael Anton to lead technical talks with Iran
The Trump administration has named senior State Department official Michael Anton to lead the U.S. technical team in negotiations with Iran over its nuclear program, according to two U.S. officials, granted anonymity to discuss sensitive diplomatic discussions. Anton, the State Department's policy planning director, is leading a team of about a dozen, largely career officials from across the government to hash out the details of an agreement that would place significant constraints on Iran's nuclear program in exchange for sanctions relief. He is set to lead the first round of expert talks with Iranian officials over the weekend before special envoy Steve Witkoff and Iranian Foreign Minister Abbas Araghchi meet again in Rome next week. Anton accompanied Witkoff to the last round of talks in Rome. 'He is the perfect man for the job given his experience and intellect. Most importantly, he will ensure that President Trump's agenda on this file is followed through,' an administration official said. Anton is a low-profile and increasingly powerful administration official who worked on the National Security Council in the first Trump administration and later served as a fellow at the conservative Claremont Institute. He has not yet staked out a public stance on the Iran file, which has long stoked intense and divisive debate in Washington. The talks are advancing as the Trump administration is split over whether to pursue diplomacy or resort to military strikes to prevent Iran from obtaining a nuclear weapon. Close ally Israel would like to see the U.S. attack now when Iran is weakened from previous strikes and with the hobbling of its main proxies. President Donald Trump, however, has said he prefers a diplomatic solution. It is unclear whether the U.S. will demand that Iran fully dismantle its nuclear program, which it asserts is only being used for civilian purposes, or work towards an arrangement that would allow Tehran to preserve some facilities subject to strict verification measures. Secretary of State Marco Rubio saidin an interview with the Free Press released Wednesday that the U.S. was pursuing an arrangement that would allow Iran to import enriched uranium fuel so that Tehran could have a civilian nuclear program. 'There's a pathway to a civil, peaceful nuclear program if they want one,' he said. 'But if they insist on enriching, then they will be the only country in the world that doesn't have a 'weapons program,' quote-unquote, but is enriching … that's problematic.' Witkoff has publicly shifted his stance on the talks since last week. After telling The Wall Street Journal and Fox News last week that the U.S. would focus on verification in any agreement, Witkoff later said the U.S. would not allow Iran to enrich uranium at all.
Politico
24-04-2025
- Politics
- Politico
US names Michael Anton to lead technical talks with Iran
The Trump administration has named senior State Department official Michael Anton to lead the U.S. technical team in negotiations with Iran over its nuclear program, according to two U.S. officials, granted anonymity to discuss sensitive diplomatic discussions. Anton, the State Department's policy planning director, is leading a team of about a dozen, largely career officials from across the government to hash out the details of an agreement that would place significant constraints on Iran's nuclear program in exchange for sanctions relief. He is set to lead the first round of expert talks with Iranian officials over the weekend before special envoy Steve Witkoff and Iranian Foreign Minister Abbas Araghchi meet again in Rome next week. Anton accompanied Witkoff to the last round of talks in Rome. 'He is the perfect man for the job given his experience and intellect. Most importantly, he will ensure that President Trump's agenda on this file is followed through,' an administration official said. Anton is a low-profile and increasingly powerful administration official who worked on the National Security Council in the first Trump administration and later served as a fellow at the conservative Claremont Institute. He has not yet staked out a public stance on the Iran file, which has long stoked intense and divisive debate in Washington. The talks are advancing as the Trump administration is split over whether to pursue diplomacy or resort to military strikes to prevent Iran from obtaining a nuclear weapon. Close ally Israel would like to see the U.S. attack now when Iran is weakened from previous strikes and with the hobbling of its main proxies. President Donald Trump, however, has said he prefers a diplomatic solution. It is unclear whether the U.S. will demand that Iran fully dismantle its nuclear program, which it asserts is only being used for civilian purposes, or work towards an arrangement that would allow Tehran to preserve some facilities subject to strict verification measures. Secretary of State Marco Rubio said in an interview with the Free Press released Wednesday that the U.S. was pursuing an arrangement that would allow Iran to import enriched uranium fuel so that Tehran could have a civilian nuclear program. 'There's a pathway to a civil, peaceful nuclear program if they want one,' he said. 'But if they insist on enriching, then they will be the only country in the world that doesn't have a 'weapons program,' quote-unquote, but is enriching … that's problematic.' Witkoff has publicly shifted his stance on the talks since last week. After telling The Wall Street Journal and Fox News last week that the U.S. would focus on verification in any agreement, Witkoff later said the U.S. would not allow Iran to enrich uranium at all .
