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In a wide-ranging interview with NBC’s Kristen Welker on Meet the Press, President-elect Donald Trump discussed immigration extensively. My colleague Teri Christoph has the rundown on what he said about the more kinetic part of the equation: rousting a few million illegals out of the US and sending them home (WATCH: Trump Tells Welker ‘Retribution Will Be Through Our Success’ and Deportations Will Be a Priority). The part that struck me as the most interesting was Trump’s deeper dive into our extremely dysfunctional immigration system.

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Birthright Immigration

A lot of people don’t want to hear it, but there is very little illegal immigration to places that don’t let the illegals stay. Europe has accomplished this by creating very, very loose “asylum” standards supported by an extraordinarily generous social welfare system that allows migrants to do nothing and get paid for it. We, being Americans, have gone about creating the illegal immigration magnet in a different way. We recognize being born on American soil as granting American citizenship. That, in turn, allows parents and siblings to stay legally. Inevitably, our “family reunification” policy brings in more folks. The term “anchor baby” causes aneurysms on the permissive immigration side of the debate, but they are a fact. 

KRISTEN WELKER:

You promised to end birthright citizenship on day one.

PRES.-ELECT DONALD TRUMP:

Correct.

KRISTEN WELKER:

Is that still your plan?

PRES.-ELECT DONALD TRUMP:

Yeah. Absolutely.

KRISTEN WELKER:

The 14th Amendment, though, says that, quote, “All persons born in the United States are citizens.”

PRES.-ELECT DONALD TRUMP:

Yeah.

KRISTEN WELKER:

Can you get around the 14th Amendment with an executive action?

PRES.-ELECT DONALD TRUMP:

Well, we’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it. We’re the only country that has it, you know.

KRISTEN WELKER:

Through an executive action? You’re going to –

PRES.-ELECT DONALD TRUMP:

You know we’re the only country that has it. Do you know if somebody sets a foot, just a foot, one foot, you don’t need two, on our land, “Congratulations you are now a citizen of the United States of America.” Yes, we’re going to end that because it’s ridiculous.

KRISTEN WELKER:

Through executive action?

PRES.-ELECT DONALD TRUMP:

Do you know – well, if we can, through executive action. I was going to do it through executive action but then we had to fix COVID first, to be honest with you. We have to end it.

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Unsurprisingly, Welker frames her response with a lie: “The 14th Amendment, though, says that, quote, “All persons born in the United States are citizens.”

The actual quote is:

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.

While there has been widespread acquiescence to an interpretation that says a child born to an illegal is a citizen, there is nothing in our law that says that and a great deal that says just the opposite. Read this excellent essay on why birthright citizenship is not a constitutional right.

I don’t know if executive action will be sufficient to change our direction because it will be open to reversal by any future president. I think the clearest course of action would be a legal case that results in “y’all can do that if you want to, but there is no constitutional reason to support birthright citizenship.”

DREAMERS

This is one of the most difficult immigration challenges is posed by so-called Dreamers; these are people who were brought to the US illegally while they were small children. Born outside the US, they remain illegals. Yet they frequently speak only English and have no attachment to their country of origin. They were allowed to remain in the US by an Obama program called Deferred Action for Childhood Arrivals, or DACA.

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KRISTEN WELKER:

What about dreamers, sir? Dreamers, who were brought to this country illegally as children. You said once back in 2017 they, quote, “Shouldn’t be very worried about being deported.” Should they be worried now?

PRES.-ELECT DONALD TRUMP:

The dreamers are going to come later, and we have to do something about the dreamers because these are people that have been brought here at a very young age. And many of these are middle-aged people now. They don’t even speak the language of their country. And yes, we’re going to do something about the dreamers. And –

KRISTEN WELKER:

What does that mean? What are you going to do?

PRES.-ELECT DONALD TRUMP:

I will work with the Democrats on a plan. And if we can come up with a plan, but the Democrats have made it very, very difficult to do anything. Republicans are very open to the dreamers. The dreamers, we’re talking many years ago they were brought into this country. Many years ago. Some of them are no longer young people. And in many cases, they’ve become successful. They have great jobs. In some cases they have small businesses. Some cases they might have large businesses. And we’re going to have to do something with them. And –

KRISTEN WELKER:

You want them to be able to stay, that’s what you’re saying?

PRES.-ELECT DONALD TRUMP:

I do. I want to be able to work something out, and it should’ve been able to be worked out over the last three or four years and it never got worked out. You know, Biden could’ve done it because he controlled, you know, Congress to a certain extent, right? He could’ve done something, but they didn’t do it. I never understood why because they always seemed to want to do it, but then when it comes down to it, they don’t. I think we can work with the Democrats and work something out.

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Trump may find that the same obstacle that prevented a solution for Dreamers early in his first term remains. The Democrats don’t care about solving the Dreamer issue. But they care very much about keeping it alive so they can demagogue it to fight immigration reform and raise cash from their donor base; see The Democrats Don’t Want a DACA Deal, They Want a DACA Issue. Trump has a lot more bargaining potential with this issue than with birthright citizenship. DACA has been ruled illegal by a federal judge. That has stopped any processing of the 80,000+ applications now in the pipeline. The decision has been appealed and will be heard by the Fifth Circuit.

[District Court Judge Andrew] Hanen’s order is expected to be appealed to the U.S. Court of Appeals for the Fifth Circuit, and, eventually, the U.S. Supreme Court.

However, given the conservative bent of the Fifth Circuit, it seems unlikely that the appellate court will reverse the decision and restore DACA. In 2015, the Fifth Circuit upheld a previous Hanen ruling halting another deferred action program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

Similarly, prospects of the Supreme Court restoring DACA seem dim. While the U.S. Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California in 2020, the majority’s opinion was based on the improper procedure used by the Trump administration in its attempted 2017 DACA rescission. That decision did not reach the question of whether DACA itself was legal.

Previously, in 2016, the Supreme Court split 4-4 in upholding the previous Fifth Circuit decision halting the similar DAPA policy. With that 4-4 court now a 6-3 conservative majority, DACA faces an uphill battle for survival.

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However, if the Democrats refuse to cooperate, Trump will face an uphill battle in crafting a successor to DACA that can pass the House only on GOP votes. Then he will be confronted with a choice of ignoring the law, like Obama and Biden, or deporting tens of thousands of people to countries where they are foreigners. I can even see the Democrats opting to force this choice.

Final Note

The border wall and tougher policing are just one part of the equation. For any kind of long-term border security, we must ensure that cretins like Joe Biden have their ability to make up policy on the fly limited. We must act to withdraw the incentives that attract millions of people to the US. One of those incentives is the knowledge that by having a kid on American soil, the parents can probably avoid deportation. And we must also act with mercy toward those, like the Dreamers, who were left stateless by the actions of their parents. At the same time, we need to make sure that any program to accommodate DACA registrants has a final date attached, and it doesn’t become just another way of beating the system.