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Here's Why Revoking Birthright Citizenship Is the Right's Next Battlecry — And What You Can Do to Protect It

July 29, 2018 in Blogs

By Paul Rosenberg, Salon

Former Trump national security official Michael Anton claims Trump can undo birthright citizenship by executive order.

This article first appeared on salon.com.

Attacks on birthright citizenship — such as the one recently published in the Washington Post by former Trump White House aide Michael Anton, he of the “Flight 93 manifesto” — are nothing new. They bubbled up during the right-wing anti-immigration politics of the George W. Bush era, with a further boost from birtherism. But they don’t have a leg to stand on, as even one of Trump’s most attention-grabbing appeals court judges, James Ho, put it bluntly in an Los Angeles Times op-ed back in 2007:

Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower.

A number of commentators wrote scathing critiques, including Daniel DreznerGerard Magliocca and Scott Lemieux, among others. Perhaps none was more scathing than the response from University of Baltimore law professor Garrett Epps – a leading scholar of the 14th Amendment — who previously took down the arguments of Edward Erler, on which Anton relies heavily. A week earlier, Epps had written a comprehensive overview, “The Struggle Over the Meaning of the 14th Amendment Continues,” in which he notes:

[A]s late as 1957, pro-Southern commentators took the position that the amendment itself, having been imposed upon the South by Yankee scum, was not valid at all.

No one seriously claims that the amendment is invalid today; but every word, every part, and every effect of this most crucial of constitutional amendments has been fought over as bitterly as was the Bloody Angle at the Battle of Spotsylvania Court House.

That battle goes on today. It is, and has been for 150 years, a battle for the very heart of the American republic.

This helps explain how seriously Epps takes the stakes involved, but his response to Anton went even further, focusing ultimately on the latter’s extraordinary claim that President Trump alone, via executive order, could effectively invalidate the amendment with a stroke of a pen.

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