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The GOP Must Stop Legal Birthright

The Buzz

The Chicago Department of Public Health, like its counterparts in all major cities, is quite open about the availability of taxpayer-funded care for pregnant women who are in the country illegally. Hospitals cannot ask about a patient’s immigration status, or even for a social security number. Pregnant women are eligible for Medicaid, the State of Illinois will not report their presence to the Department of Homeland Security (DHS), and best of all, their newborn children are considered American citizens. For poor pregnant women from most of the world, this is like winning the lottery. For the children, birthright citizenship means a lifetime of publicly funded benefits, and at age eighteen, the right to sponsor their parents for lawful permanent residency.

It is estimated that up to 400,000 babies are born in this country each year to mothers here illegally. In some Texas hospitals, they account for 70 percent of births. This is the “birth tourism” industry—the result of our peculiar policy of “birthright citizenship.” Anyone born on U.S. soil (or abroad, if to parents who are citizens) is a citizen, regardless of the legal statuses of their parents. Many other countries have abandoned it, including the United Kingdom, Ireland and Australia. The most bizarre aspect of this law is that Congress has never passed it, and the country was never allowed to weigh in on the issue. It has simply evolved from an 1898 Supreme Court decision (U.S. v. Wong Kim Ark) concerning a lawful permanent resident. To this day, there has never been a statute or court decision providing for birthright citizenship for the children of illegal immigrants, and here I hope to show we can and should pass a law to end it.

In the 1850s, the Supreme Court had maintained that blacks were not citizens (Dred Scott v. Sandford, 1857), which had to be addressed after the Civil War. Congress realized this could not simply be undone by a law. The Constitution had to be amended to overturn the decision. The amendment was written broadly: “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.” [Emphasis added]. But what did the italicized clause mean?

The congressional debate makes it quite clear that the Senate sponsor of the Amendment, Lyman Trumbull (R-IL), did not believe it would apply to foreigners, unless they had renounced their ties to their home nations. When asked what the phrase “subject to the jurisdiction thereof” meant, he answered, “not owing allegiance to anybody else.” He believed the amendment would grant citizenship to the children of Chinese immigrants living in California.

Did he mean to create birthright citizenship for illegal immigrants? I don’t think so, though the question was never brought up. There was no illegal-alien problem at the time. The Chinese Trumbull was referring to had come to the United States legally and settled in the West, particularly California. We had de facto open borders until 1875, and immigrants were welcome, especially if they would provide cheap labor in the mines and railroads. Trumbull was distinguishing legal permanent immigrants from visitors intending to return home. The latter group still owed allegiance to their native countries. So in his view, citizenship was a consensual act.      

The 1866 Civil Rights Act, passed at the same time to crack down on the Ku Klux Klan, provided that people born in the country “and not subject to any foreign power” rather than “subject to the jurisdiction thereof, ” were citizens. I do not know why that phrase, which plainly excludes illegal immigrants, was not used in the amendment. But no historian or court has ever concluded the amendment meant something different. If we accept that premise, that “subject to the jurisdiction thereof” means not “subject to any foreign power” then the Supreme Court made an historic blunder in its famous Wong Kim Ark decision. By a 5-2 vote, it decided that “subject to the jurisdiction” meant everyone on U.S. soil, except foreign troops and ambassadors. It did so in deciding whether the son of two Chinese immigrants, who had entered the country legally and whose child born in San Francisco, was a U.S. citizen. Under the original understanding of the Fourteenth Amendment, as enunciated by Trumbull, he was.

But if the Court had followed its two prior decisions interpreting the phrase “subject to the jurisdiction thereof,” it would not have enunciated such a broad rule and would once again have recognized foreigners are not subject to U.S. jurisdiction, unless they are here legally and intend to remain here more or less forever (i.e. citizenship by consent, rather than by place of birth).

Now, more than a century later, are judges required to adhere to Wong Kim Ark’s interpretation of the phrase “subject to the jurisdiction thereof”? The question basically answers itself. If the Court was free to change its interpretation from its earlier decisions in deciding Wong Kim Ark, then why can’t today’s justices do so again? The Supreme Court reverses itself in interpreting the Constitution, most recently in Citizens United three years ago (as to whether corporations have First Amendment rights).

The Court also consistently says the doctrine of stare decisis (following precedent) is at its weakest when interpreting the Constitution. Such errors can have grave and irremediable consequences, since they cannot be undone by Congress. So the Supreme Court should feel free to revisit them. Why not test Wong Kim Ark? The consequences of this decision are costing us billions of dollars a year, and what are its benefits?

And if the Court wanted to take an easier route to reconsidering Wong Kim Ark, it could just focus on the word “jurisdiction.” It has recognized that is one of the most overused and misused words in the legal lexicon. Definitions of jurisdiction in the current Black’s Law Dictionary spill over five pages, and none of them seems to apply to the concept of national power over foreigners as used in the amendment.

How should the Court interpret the phrase “subject to the jurisdiction thereof” today? An originalist Court would not be bound by a modern dictionary. It would look at original sources from the ratification period to discern what they intended. Trumbull's statement and that of his colleague Sen. Jacob Howard (who was credited with actually writing the amendment)—that jurisdiction “will not, of course, include foreigners”—would be given considerable weight. As Justice Antonin Scalia and his colleague Bryan A. Garner say in their new book on interpreting legal texts:

“Originalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators.”

I also pay very close attention to how legal realists interpret text. Judge Richard Posner considers himself a realist, and he thinks birthright citizenship “makes no sense” and can be abolished by statute.

If the Senate flips to Republican control next month, and the party wants to try its hand at its version of “immigration reform,” then this should be very high on the agenda. It might also require hospitals to collect social security numbers of patients and report the admission of those who don’t have them to the DHS. Those two reforms would end the thriving “birth tourism” industry. It can’t come too soon.

Howard W. Foster is a lawyer specializing in civil RICO cases involving the employment of illegal immigrants.

Image: Wikimedia Commons/Joe Ravi/CC by-sa 3.0

TopicsDomestic PoliticsImmigration RegionsUnited States

Climate Change and National Security, Properly Defined

Paul Pillar

The Department of Defense recently released a "Climate Change Adaptation Roadmap" that relates the department's business to global warming and the accompanying climatic changes. The document is welcome in a couple of respects beyond assuring us that the department is properly tending to the various respects in which climate change is affecting its own operations and missions. First, it is a straightforward, unquestioning recognition of the reality and problem of climate change, by the largest executive branch department in the U.S. government. Second, by linking the problem to national security it may help to get the attention of at least some people who have no respect for tree huggers but get a rise out of any use of the U.S. military.

The document relates climate change to national security in two basic ways, as stated in the covering statement by Secretary of Defense Hagel. One is that climate change is a “threat multiplier” that can exacerbate problems that are already well known and which can lead to situations in which overseas involvement of the U.S. military may become an issue. Droughts and other climate-related resource scarcity, for example, may intensify conflicts over resources. The other way, which is what most of the document is about, is that climate change has numerous impacts on the U.S. military's operations, training, and facilities. The heavy concentration of military installations in Virginia's Hampton Roads region, for example, will mean a high impact on the military of the danger that low-lying region faces as one of the U.S. coastal areas most affected by rising sea levels.

These all are important matters, and it is appropriate for the Department of Defense to focus upon them. A document such as this carries the hazard, however, of suggesting that climate change is a national security issue only insofar as as it impinges on matters most traditionally considered to involve national security, especially matters involving the military. That is an artificially narrow conception of national security, consistent perhaps with some ideas of the past but not reflecting the fundamental meaning of national security.

Central to that meaning is the physical well-being of the nation's citizens. That well-being can be endangered by human action either directly, as with an invasion force or a terrorist group bombing people in the United States, or indirectly, as with the multiple physical effects of global warming. Increasing flooding endangers the security of the citizens of Hampton Roads whether there were any military bases in their neighborhood or not.

The security implications of climate change for Americans entail several causal paths, some more direct than others. They include the risk of being killed by extreme weather events, the impairment of food supplies, the loss of forest resources through northward migration of pests, and much else. But the implications do not even have to depend on these sorts of secondary events. The sheer heating up of the homeland matters, too. The health and attractiveness of the United States, and ultimately its strength, depend greatly on the country's fortunate geographic and climatological circumstances. Any impairment of those circumstances is in a real sense a loss of security, too.

As long as we remember those things then it is good to see a document such as the DoD roadmap, which might help to engage some people who have a narrower concept of national security. We need all the help on this we can get, given the continued prominence of American political figures whose views on climate change sound more in tune with the days when Earth was thought to be flat.

Image: Flickr.                       

 

TopicsClimate Change RegionsUnited States

Kobani: A Metaphor For the Contradictions Facing The West

The Buzz

Nestled on the Turkish border in northern Syria is the city of Kobani, once inhabited by some 50,000 Kurds. Its Syrian name Ayn al-Arab reflects the stateless nature of the Kurds in Assad’s Syria, where they are denied citizenship and any social rights. For the Kurds of Kobani are trapped in Syria, hemmed in by Turkey and under attack by the Islamic State.

Questioned as to why the IS assault was not being stopped, Admiral John Kirby responded,  “Airstrikes alone, are not going to . . . to save the town of Kobani.” However, the bravery and tenacity of its Kurdish fighters, combined with airstrikes have permitted it to hang on. It also proves that the IS is not omnipotent in the face of spirited resistance. Quite the contrary.

The Kurds will fight to the end--the examples of IS making prisoners dig their own graves give no reason for them to think that surrender is an option. The old, infirm or the young are left behind, unable to run; their fates predictable if the city falls.

The UN Special Envoy to Syria Staffan de Mistura has warned of an impending massacre. So desperate is the projected scenario for Kobani that Mistura has even asked Turkey to permit volunteers to cross the border to fight the IS and failing that, to assist the US-led coalition "through whatever means from their own territory".

Turkey however won’t act alone, and if it does it is only in the context of defeating Assad – an invitation for mission creep. Our goals are fundamentally different. Instead, thousands gather on hills on the Turkish side of the border, spectators to the carnage unfolding below.

The Obama plan, for which airstrikes are only the opening act, is seemingly unable to find regional actors to provide the ground forces on which the very success of his plan to degrade and destroy the IS rests. If Turkey with a 400 kilometer long border--now occupied by the IS--will not act, despite the recommendations of its own high command, there is little likelihood that other, smaller regional Arab nations will.

Whether Kobani falls or not it presents a series of contradictions for everyone--whichever camp they belong to.

Days of airstrikes have blunted the IS advance, thanks to Kurdish resistance, but the aerial campaign is under-resourced. It can degrade the IS, but it cannot provide for the persistent air coverage necessary to do more alone. Already choices are being made whether to direct resources towards Kobani, or to the ISIS danger around Bagdhad. Desert Storm was far better resourced.

Of all the nations contributing to the coalition, most will not fly over Syria; the niceties of international law rooted in the Westphalian notion of states’ rights standing in the way of any responsibility to protect (R2P). Under international law, Syria has not explicitly granted permission for coalition airstrikes against the IS but to seek that authority, would politically for some nations, be seen as siding with or abetting that regime. It is difficult to see how saving Kobani from falling and avoiding yet more thousands of refugees could in any way be argued as helping Assad. On the contrary, allowing the IS to destroy the Kurds physically, only does what Assad’s regime was doing materially.

The same Westphalian niceties prevent the direct arming of the Kurds with more sophisticated weaponry, instead directing arms to the so far invisible Iraqi Army.

And that in a nutshell is what the Kobani metaphor reveals. Airpower alone will not stop the IS without fierce resistance on the ground. And in not attacking the IS in its entirety, meaning both in Syria and in Iraq, by coordinated air and ground offensives, an incoherent piecemeal effect will be the result. The Kurds can hold, but are not large enough or well enough equipped to defeat the IS alone. The Iraqi Army seems to exist in name only. The longer we wait, the more difficult the task of destroying the IS will be.

Hope cannot supplant the glaringly obvious and despite US and western reluctance to intervene with ground forces, only with some western troops committed, will regional partners be enticed join us. If we insist on none of our boots on the ground, why would regional partners volunteer?

As in Gulf War One, aims limited to recapturing territory and destroying ISIS strongholds should be the limit of our military aspirations. We should not be drawn into reconstruction or the reconstitution of government and civil society by military means. Regional actors can do that and deal with wider issues like Syria’s Assad after we're gone.

If not, the goal of all this, the rapid destruction of the IS, will somehow be forgotten, as are the people we are trying to protect; bogged down in a lengthy air campaign and the interminable search for willing partners. We will undoubtedly face the spectre of more Kobanis and the thousands more dead and displaced that will impose.

George Petrolekas is on the Board of Directors of the CDA Institute and co-author of the 2013 and 2014 Strategic Outlook for Canada. Mr. Petrolekas served with NATO, and in Bosnia, Afghanistan and Cyprus and as an advisor to senior NATO commanders.

Howard Coombs is a graduate of the United States Army Command and General Staff College, as well as the US Army School of Advanced Military Studies. He is currently a professor of military history and war studies at the Royal Military College of Canada.

Image: U.S. Air Force Flickr. 

TopicsKobani RegionsMiddle East

China: Sharpening Swords for War?

The Buzz

From a realist’s geopolitical perspective, the United States needs to keep eyes on global hot spots with concentrations of power that could adversely affect American national interests.  Of the three geographic centers of global power today, two are engulfed in war while the third is on the war’s precipice.  In Europe, Russia has returned to its quest for global power with its steely paramilitary and military disembowelment of Ukraine.  Moscow’s aggression now looms over other states in Europe, especially the Baltic states and Poland.  In the Middle East, the Islamic State has lurched onto the international scene with a bloody rampage that has torn apart Syria and Iraq.  The Islamic State looks ready is to expand and spill more blood along the borders of Jordan and Turkey and in Kurdish areas in Iraq, notwithstanding the American and international coalition air campaign against the jihadists.

In Asia, China has not yet shed any blood in war.  But a read of Robert Haddick’s new book Fire on the Water: China, America, and the Future of the Pacific painstakingly shows through his level-headed, scholarly, and realist analysis that Beijing is sharpening its swords for war while Washington is distracted by chaos elsewhere.  Haddick rightly judges that the United States “acting as an outside balancer, has played the central role in East Asia’s security, a responsibility that has boosted the prosperity of all.  But just like Europe a century ago, it is doubtful that Asia, left on its own, could shape a stable balance of power in the face of China’s dramatic rise.”

Haddick is deliberate and measured and “calls it as he sees it,” which is a tone to be welcomed in the often ideological debates on China’s future in international security.  Nevertheless, with his formidable political-military expertise Haddick makes a damning case that China is wielding astute diplomacy and building-up its military forces to exploit weaknesses in American military force projection capabilities into the Asian theater.  China has diplomatically labored to settle numerous land disputes with neighbors.  As Haddick tallies the diplomatic score, “Since 1998 China settled eleven lingering land border disputes with six of its neighbors, steps that removed security friction from potential overland threats.”  China’s $400 billion deal to buy gas from Russia signed in May 2014 and its economic development agreements signed with India in September 2014 bolster Haddick’s assessment that Beijing is shoring-up relations with land border states.

Settling border disputes allows Beijing to turn and focus its geopolitical attention to the sea.  China is using a paramilitary maritime force to place footholds on disputed islands and assert hegemony in the East and South China Seas.  Haddick observes a disturbing contrast in behavior.  While China has settled land disputes, “it has accelerated its demands for its maritime claims in the East and South China Seas.” China is playing a shrewd “salami tactics” game with assertive actions that taken in isolation fall short of cause for war, but collectively and over time significantly expand Chinese influence and coercion in Asia.

China couples its paramilitary maritime operations with a substantial build-up of military power for deterring and attacking American carrier battle groups.  Haddick’s book details that the Chinese are growing land-based and space-based systems for detecting and targeting American battle groups, as well as building surface ships and attack submarines for firing anti-ship cruise missiles.  All of these Chinese naval capabilities are designed to push American naval access beyond some 2,000 km from China’s coastline.  

Chinese military capabilities to deny the United States the ability to operate fixed-wing aircraft add to the formidable threats to American forces in the region.  As Haddick judges, “China’s Flanker fighter-bombers present a particular challenge to the United States and its allies because of their relatively long combat radius.  The Flanker variants have an unrefueled combat radius of at least 1,500 kilometers.  Five of the six U.S. air bases in the western Pacific (two in South Korea, three in Japan) lie within the combat radius of China’s Flankers.”  China’s increasingly sophisticated and thickening air defenses, moreover, significantly increases the potential costs for American aircraft to hold at risk military assets on the Chinese mainland.

The Chinese are unconstrained in building-up their ballistic and cruise missile capabilities as the United States is by the Intermediate Nuclear Forces (INF) Treaty.  Washington and Moscow signed the INF Treaty that bans land-based missiles with ranges between 500 and 5,500 km.  China is churning out ballistic missiles and cruise missiles to increasingly hold at risk regional airbases that host American short-range fighters.  This is a particularly unnerving situation for the United States because Russia has been violating the terms of the INF Treaty by testing prohibited cruise missiles.

On top of conventional military capabilities to deny American military access, the Chinese are fielding unconventional capabilities to deter American military intervention.  They are broadening their anti-satellite and cyber warfare capabilities that could be harnessed to disable American command, control, communications, and intelligence.  The Chinese too are modernizing their strategic nuclear forces to include mobile land-based intercontinental ballistic missiles—the likes of which the United States does not have in its nuclear triad—and submarine-based nuclear-tipped ballistic missiles.  

The Chinese are resolved to never again be intimidated by American conventional and strategic forces as they were during the 1996 Taiwan Strait crisis.  While that crisis in the minds of American—if they even know about it—was a mere footnote in American security policy history, it was a watershed event for the Chinese.  Haddick judges that “China’s military modernization program, begun in earnest after PLA planners carefully studied the results of the 1991 Persian Gulf War and the 1995-96 Taiwan Strait crisis, has been specifically designed to exploit vulnerabilities in U.S. force structure, doctrine, and planning.  Assumptions that U.S. commanders had long taken for granted will no longer be operative by the end of the decade.”  Americans—with our sweeping demands to watch the globe to protect interests—are at a distinct disadvantage in the competition with Chinese who have a tighter basket of security interests upon which they can focus their strategic energies.   

Haddick persuasively rejects an “offshore balancing” strategy for the United States in the Pacific and strenuously argues for a “forward presence.”  In his analysis, “Offshore balancing would not only increase the likelihood that the United States would have to return during a conflict to restore stability (because without a U.S. forward presence, the likelihood of major power conflict rises), the strategy ensures that the U.S. would have to do so under very unfavorable circumstances.”  Haddick hastens to add that “The U.S. forward presence strategy in the Asia-Pacific region is not charity work.  The United States has performed this task for seven decades in order to protect U.S. security, to avert more costly great-power wars that would inevitably involve the United States, and to bolster America’s standard of living by promoting the security and growth of its trading partners in the region.”

Haddick’s assessment of how the American military would fare in battle against this tsunami of growing Chinese military capabilities is devastating.  His analysis should break all the china (pun intended) of American military services whose procurement priorities focus on fighting the last wars.  As Haddick captures the problem, “Simply put, military doctrine, long-ingrained service cultures, and defense acquisition practices have resulted in U.S. military forces that are far too heavily weighted toward short-range weapons systems unsuited for the vast operational distances in East Asia.”  The navy is fixated on increasingly vulnerable aircraft carriers.  The air force is preoccupied with short-range and exorbitantly expensive short-range fighters.  The marines are struggling to find the means to mount amphibious assaults in an era in which cruise missiles can sink marines afloat long before they get anywhere close to a beach.  And the army is largely AWOL in thinking about the future of warfare in Asia.

American policymakers and military planners need to rapidly and drastically rethink strategy for Asia, as well as the national means needed to fulfill it.  Haddick calls for “a broad range of persuasive and dissuasive capabilities—diplomatic, economic, and military (irregular and conventional)—designed to convince China’s leaders that they will achieve no gains in the region from coercion.  The strategy will do this by threatening to impose costs, creating resistance to coercive Chinese gains, and holding at risk assets and conditions valued by China’s leaders.” Haddick stresses that his recommended strategy relies on a hefty mix of long-range striking platforms and differs markedly from the navy-air force “Air-Sea Battle” concept because his does not call for first-strikes on China’s reconnaissance and command systems.  Nor does Haddick expect American forward bases to be useful after war breaks out or American surface ships to operate for sustained periods within Chinese ballistic missile ranges.

Fire on the War provides superb political-military analysis unencumbered by the interests of the armed services, national security bureaucracies, and defense industries.  It is an insightful and constructive contribution to better inform American decision-making, policy, military procurement, and, yes indeed, war planning for China.  This book should be placed on the top of the reading stacks for anyone, from informed citizens, to students, faculty, military commanders, and policy makers, who want to get smart fast on the acute challenges for American security policy in Asia.  Above all, Robert Haddick provides a great public and national service by warning those of us distracted by global crises in Europe and the Middle East of China’s strategically impressive and ominous sharpening of political and military swords in Asia.

Richard L. Russell is Non-Resident Senior Fellow for Strategic Studies at the Center for the National Interest.

TopicsSecurity RegionsChina

The Real Ebola Threat

The Buzz

West Africa may be at the center of the ongoing Ebola crisis, but the fear of the virus is pan-African. Much of the world sees Ebola as an African problem and Africans are beginning to internalize this perception as well. The continent’s response to the virus is seen domestically and internationally as a litmus test of the capacity and abilities of national governments which are using the crisis as a means to assure their citizens and international partners of their newfound capacities and crisis response potential.

In southern Africa, Zambia was one of the first countries to announce restrictions on travel from the Ebola affected countries in early August. Shortly thereafter, Kenya Airways halted flights to countries at the center of the Ebola epidemic.* South Africa, a major destination of travelers from West Africa, blocked visitors from the affected countries a few weeks later despite advice to the contrary from the World Health Organization. Namibia and Botswana followed suit soon after.

More recently, the continued spread of the virus has started to impact travel within Africa even outside of the Ebola hotspots. In late September, Namibia’s health minister advised Namibian nationals not to visit Zimbabwe due to Ebola fears. Zimbabwean officials in turn have encouraged their citizens to avoid all of West Africa, explicitly requesting that they cancel visits to popular Nigerian preachers.

Delving further into the Zimbabwe example, the Ebola crisis regularly makes headlines in the national press there. The country has adopted stringent Ebola prevention measures; including placing nearly one hundred travelers from West Africa under close observation for twenty-one days. Doctors and nurses have received Ebola training and a forty-bed Ebola treatment center has been established in Harare. Ebola has severely disrupted customary cultural greetings in West Africa and Zimbabwe’s minister of health has similarly advised Zimbabweans to avoid handshakes and other intimate greetings. From HIV testing centers in the high-density township of Chitungwiza, to Africa University near the border with Mozambique, Ebola awareness posters are common across the country, indicating that both the state and its citizens take the disease very seriously.

Despite the precautionary measures, rumors of Ebola deaths at several Zimbabwean hospitals have gained traction. As a result of these fears, there have been major cancellations of reservations in resort towns like Victoria Falls and postponement of public events. Opponents of the governing party have used the disease as a political tool, leveraging that with Zimbabwe’s decaying health infrastructure and susceptibility to diseases like cholera, Ebola is positioned to devastate the country.

Following successful containment efforts in Nigeria and Senegal, Ebola now appears to be confined to the countries of the Mano River Basin. However, the inadequate conditions that allowed the disease to spread in those countries can be found across the continent. Citizens of countries like Zimbabwe, vividly remember similar failings of their governments to contain impending disasters, such as the initial voices of dissent from war veterans that culminated in the violent appropriation of farmland and hyperinflation. For much of the world, Africa is seen as a monolithic block, and Ebola perceptions will tarnish the whole continent, not only the countries where people are suffering from the virus.

Despite previous failings, authorities in Zimbabwe are demonstrating a significant commitment to ensure that the virus does not penetrate their borders. As the embarrassing American response to a case of Ebola in Texas shows, response to the unprecedented outbreak is not easy. While Ebola has sparked panic across Africa, its states are engaged in major efforts to limit the impact of the virus. Some countries are better equipped to respond to the crisis than others – these efforts, combined with international assistance, are critical to ensure that the virus is defeated and that the destruction it causes, both physical and reputational, is minimal.

* There have been recent indications that many regional flights to the countries most severely impacted by the Ebola crisis in West Africa will soon resume.

This piece first appeared in CFR’s Africa in Transition blog here.

https://www.flickr.com/photos/cdcglobal/14723720857/sizes/lImage: Flickr. 

TopicsEbola RegionsAfrica

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