Fox News Immediately Pivots to Birthright Citizenship Mode - Rolling Stone
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Fox News Immediately Pivots to Birthright Citizenship Mode

The network’s talking heads do not seem interested in understanding the Constitution, because doing so would force them to contradict the president

President Donald Trump pauses while speaking at a rally at Southern Illinois Airport in Murphysboro, IllElection 2018 Trump, Murphysboro, USA - 27 Oct 2018President Donald Trump pauses while speaking at a rally at Southern Illinois Airport in Murphysboro, IllElection 2018 Trump, Murphysboro, USA - 27 Oct 2018

President Donald Trump pauses while speaking at a rally at Southern Illinois Airport in Murphysboro, IL.

Andrew Harnik/AP/REX Shutterstock

The midterms are less than a week away and President Trump is trying to stuff as much anti-immigrant rhetoric into the national conversation as possible. On Tuesday, Axios reported that the White House is working up an executive order that would revoke birthright citizenship in the United States, which is protected by the 14th Amendment. Most legal scholars agree that this isn’t something the president can put an end to unilaterally. Even House Speaker Paul Ryan (R-WI) dismissed the idea. “Well, obviously you can’t do that. You cannot end birthright citizenship with an executive order,” he told a Wisconsin radio station, adding that as a conservative, he is a “believer in following the plain text of the Constitution” and that “in this case the 14th Amendment is pretty clear.”

Whether or not the Trump administration actually believes the president can upend the Constitution with an executive order, the idea is catnip to Fox News, which has never met an anti-immigrant talking point it didn’t like. After Trump reignited the birthright debate Tuesday morning, the network gladly crammed its programming with talking heads defending it from every angle, and even some legal minds to argue that actually, possibly, maybe, Trump could put an end to it by himself.

Tucker Carlson — who in July said that Mexico “packing our electorate” was a greater threat to Democracy than Russian interference — was chomping at the bit. He began last night by noting that no European countries and only two African countries allow birthright citizenship, typical as it is for Carlson to look to Europe and Africa as models for how America should govern itself.

He closed with a Trumpian bit about how birthright citizenship is just another way foreign nations are taking advantage of the United States. “This is a scam, there is no other word for it,” he said after implying that those granted citizenship under the 14th Amendment are not “actual” Americans. “Don’t blame the Chinese or the Russians or the Salvadorians or anybody else using the system. We’re the ones offering it. Why wouldn’t they take it? The blame lies with us.”

Trump chimed in Wednesday morning, quite possibly as he was watching a recording of Carlson’s show.

Earlier on Wednesday, the network brought on George Rodriguez, whose title was listed only as “El Conservador,” to argue that Democrats want to retain birthright citizenship not because it is one of the provisions of the Constitution most intrinsic to America’s core principles, but because they want to “replenish” their dwindling stock of liberal voters. “They need to bring in new voters, they need to bring in new immigrants,” he said. “Just like Boss Tweed in New York back in the 1860s used to take advantage of immigrants as they got off the, uh, the boats. The same thing has been happening in the border regions. Political bosses have been doing the same thing. I think that’s what they want to do.”


Fox News wasn’t short of pundits with law degrees, either. Though the legal community is nearly unanimous in its belief that there isn’t much disputing the amendment, somehow all of the law experts on Fox News contend that there could be some wriggle room. “It doesn’t say just if you are born here in the 14th Amendment, it says subject to the jurisdiction thereof,” argued Kayleigh McEnany. “Let’s say you have the right to get a driver’s license. You are subject to the laws of the United States, you are a permanent resident of the United States. It’s a live legal question and the Supreme Court has never ruled on it. It’s why you see so much conflict between Paul Ryan saying it isn’t allowed and Trump saying it it.”

Trump’s favorite voter fraud “expert” Kris Kobach also argued that immigrants living in the United Stats illegally are not “subject to the jurisdiction” of the United States, and that Trump may be able to end birthright citizenship with the stroke of a pen. “Obviously illegal aliens and temporary visitors don’t have to be citizens by birth here,” he said. “Congress could change it, or, the way our statute is currently drafted, the president could do it through a regulation.”

The problem with these arguments is that the Supreme Court has ruled on this issue. In the 1898 case United States v. Wong Kim Ark, the court determined that a man born to Chinese parents living in San Francisco was indeed a U.S. citizen. Even though his parents were not citizens themselves, they were “subject to the jurisdiction of the United States.” As University of Texas law professor professor Steve Vladek pointed out in a piece for NBC’s Think, the 1898 ruling laid out that the only designations to which the “jurisdiction thereof” does not apply are children of Native American tribes born on certain reservations, children “born of alien enemies in hostile occupation” during a time of war and children of foreign diplomats. The ruling was reaffirmed in 1982, with the court writing that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Vladek also points to a 2006 essay by Fifth Circuit Judge James Ho, a Trump appointee, that lays waste to the idea that the president could end birthright citizenship with an executive order. “Birthright citizenship is guaranteed by the Fourteenth Amendment,” he writes. “The birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” Because the Supreme Court has ruled on the issue so consistently, “the only way to restrict birthright citizenship” is through a constitutional amendment, Ho concludes.

Trump couldn’t care less about any of this, and thus, neither does Fox News. The president flippantly let out that “they” told him he could end birthright citizenship with an executive order, and the network sees it as its duty to find people to support the president’s claims. This often (usually) involves constructing an alternate reality of disinformation designed to further Trump’s agenda, which, at this point in time, is focused on drumming as much fear of brown people as possible as a ploy for Republicans to retain control of Congress next week.


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