On Tuesday evening the President spoke from the Oval Office concerning what he characterized as a major crisis on our southern border. Immediately after his address the Democrat leadership, Nancy Pelosi and Chuck Schumer, stood united to state they would not give in on any funding for a border wall. Another classic example of both sides digging in their heals and playing to their base in preparation for the elections in 2020 with little regard to finding a real solution.
So, let’s look at some facts. First, I am not sure it is a full-blown crisis but there is a major problem on the border. We have a large caravan of people from Central America encamped in Tijuana wanting to enter the United States. Any reasonable person can conclude that if you allow this group of people to enter the country another group will be at the border within two months and more on the way. We have to come up with a solution and we have to do it quickly.
Second, Democrats have supported barriers in the past. In the Secure Fence Act of 2006, both the House and Senate passed a bill that would have erected 700 miles of triple fencing. This was at a time when Democrats viewed it politically expedient to support border security in strong measures. I suspect that Sen. Lindsay Graham will introduce a bill this week to call for a similar fence and then we will see how Democrats will react. To be fair, Trump has derided that type of border security, but it might be better than anything he can currently get with a Democrat-controlled House and Chuck Schumer having enough Democrats in the Senate to filibuster any bill.
Third, in 2013 the Gang of Eight brought a bill forward that would provide for fencing along the border. That bill also provided a pathway to citizenship for those immigrants that have been in the country for a certain number of years and met other criteria. Democrats in the Senate supported that proposal but unfortunately, it was unable to get support in a Republican House.
But today we have President Trump believing that he is right and politically it will serve him well in 2020 and we also have the Democrats believing that it helps them politically to oppose Trump on any proposal. In other words, both sides are not really looking for a solution but rather how to retain or seize power in the next election.
The real solution is a comprehensive immigration bill that addresses all of the issues in play. That means DACA, Border Security and Citizenship. It is something that will require a compromise. Sen. Marc Rubio, in an interview, made the statement that President Trump was elected to, among other things, provide for border security, and Nancy Pelosi and Chuck Schumer stated they were elected to stop him. I thought elected officials were elected to solve the nation’s problems and not create stalemates.
So here we are with the government in a partial shutdown and no compromise in sight. Democrats claim they are for border security but nothing like a wall that might actually stop people from illegally crossing the border. To me, we are arguing semantics. If a fence is designed to stop people from crossing the border and we find that it is not effective you would naturally find a barrier that is more effective. The Secure Fencing Act of 2006 was passed with the clear intent of stopping people from crossing the border. It has apparently failed and that is fine with Democrats but not Republicans. We need to use an analogy of sorts. If you have a fence around your garden to keep out pests who will destroy or eat what you have planted, and you find they can easily scale the fence what would you do? You can either abandon your garden and allow the pests to have free entry or you would erect a bigger fence that would stop them. If the issue is border security and not politics, then you erect a barrier that accomplishes the goal of border security.
That takes me back to some compromises. First, the elected officials need to sit down and come to an agreement that they will pass a comprehensive immigration bill by a date certain. Part of that compromise includes funding the government until that date. If they fail to meet that date with no resolution in sight you shut down the government again. I have written in the past on what I think a framework for comprehensive immigration would look like. Below is my outline.
- I would begin the process of issuing every American citizen a national ID card that would include some form of biometrics to deter counterfeiting. This would also solve the issue of voter ID. It would be the primary identification document each American has in his/her possession.
- I would then take a look at the number of people here illegally. You can call them undocumented all you want but they did cross the border illegally, so it is correct to use that term. Anyone that thinks we are going to deport 11-12 million people is not thinking rationally. I will be the first to admit that there are many jobs in this nation that it is very difficult to get U.S citizens to do. Many of them are in the agriculture industry. Once we determine how many we need I would develop a process for those in the country and wanting to stay to apply for an ID card allowing them to be in the United States and work. Whatever that number is they will be the only aliens getting the card.
- Enforcement would be easier since now everyone that is eligible for employment, citizen or alien would have the necessary ID. The penalties would be on employers and I would quit chasing people. It is too costly and very difficult. Employers would be advised that if they hire someone without the appropriate ID there will be a fine for the first offense. A second offense would mean the fine is tripled. Any third and subsequent offenses by that employer would result in a criminal charge against the top office in the company.
- To those that have been in the country for some period of time, determined by Congress in the bill, they will have the opportunity to apply for citizenship and a pathway would be developed. They would have to show that they have been law abiding and working. They will have to show they have been paying taxes when working. I realize that not every person here illegally wants to become an American citizen. For those that do they would have to meet the requirements laid out in an immigration bill.
- Now I would address one of the thornier issues in any immigration debate. The 14th Amendment to the Constitution 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the ” This is the basis for the principle of citizenship being granted if you are born in the United States. It was a direct response to southern states passing what was known as “Black Codes” which attempted to limit and remove many rights from freed slaves. Section 1 of the amendment, which contains the above language, overturned the Dred Scott decision by the Supreme Court which held that blacks were not citizens and could not become citizens.
I fully agree with the intent of the 14th amendment. It was ensuring that freed slaves all enjoyed the equal protection of the law and had the same rights as any other American. I don’t think there were very many blacks sneaking into the United States to become slaves. All of them were here, according to the laws at that time, legally.
In the debate over the 14th Amendment, a lot of issues were discussed including children born in the United States to foreign parents. According to many in the Senate and President Andrew Johnson, this would make such children citizens of the United States. Looking at this debate in modern times we realize there was not a problem with illegal immigration in the 1860s. There were many scholars that disputed this interpretation of the amendment and have argued that children of parents not in the country legally were not citizens. The term used in the congressional debate on this amendment was “country of jurisdiction.” There were many in the Senate that foresaw a problem and wanted to ensure that people just happening to be in the United States were not granted citizenship.
The principle was finally tested in the landmark case of United States v. Wong Kim Ark (1898). Wong Kim Ark was born in 1873 to parents from China that were in the United States legally. In 1894 Wong went to China to visit his parents who had returned to their native China. When he returned in 1895, he was denied entry based on the Chinese Exclusion Act which stated that any Chinese person that left the United States could not return without applying to do so.
Wong sued claiming he was born here and the 14th Amendment granted him citizenship. He was held on a ship for five months while his case was being tried. (Can you imagine a case like this getting the Supreme Court that fast today). In a 6–2 decision issued on March 28, 1898, the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.”
I agree with the original intent of the 14th Amendment and the decision by the Court in the Wong case in 1898. In all instances, they were addressing people that were in the country legally according to the law at that time. That is the major crux of the argument. We are granting one of the most prized possessions of our nation, citizenship, predicated on an illegal act. There have been many scholars that have debated this issue, but the Supreme Court has not revisited it and the lower Courts have accepted it as settled law. I would argue that Congress has the ability to change the interpretation or at the least get a test case before the Court that would force them to revisit the issue with the full understanding of immigration, both legal and illegal, in modern times.I would also suggest that any change to the law would be prospective in nature and its most salient point is that it would solve the problem in the future.
So, to recap, my points are fairly simple. Issue the identification card as an enforcement tool, penalize employers instead of chasing people, and reinterpret the U.S. v. Wong case on whether just being born here gives you citizenship.
I want to make clear that this is just my framework of immigration reform. Others might have better ideas than me. My point is that something has to be done, and sitting around waiting for the next election because you think it favors you to do nothing is not doing the people’s business.