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Hiltzik: John Eastman’s fealty to Trump could cost him – Jobsmaa.com

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The first day flurry of executive orders aimed at remaking the US government in Donald Trump's image may make Americans' heads spin, but one stands out from the rest for its sheer audacity.

It was an order to revoke the “birthright citizenship” constitutionally granted to nearly all children born within US borders.

Opposition to birthright citizenship emerged almost immediately after the passage of the 14th Amendment as part of its adoption in 1868, and waxed and waned in tandem with political controversies over immigration.

All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States.

– US Constitution, 14th Amendment

But its emergence as a key issue for Trump owes much to the work of a California attorney. He was John C. Eastman, a longtime Trump adviser, is facing impeachment proceedings for his role in the January 6 uprising.

Eastman argued for a reconsideration of birthright citizenship—or As I wrote in 2020“Flog this dead horse” – for years. He continues to be in the minority among legal authorities on the topic.

However, as he did in a recent conversation with me, he says, “All the leading scholars agree with me on this issue.”

He added: “I've been very important recently in expressing that position.” He declined to say whether Trump consulted with the campaign or transition team before issuing the executive order.

Eastman's criticism of birthright citizenship appeared mostly through legal articles and in conservative publications until the 2020s. An article he wrote for Newsweek made him the public face of the issue.

An article published the day after Joe Biden chose Kamala Harris as his 2020 running mate questioned whether Harris was eligible for the presidency (or by extension vice presidency) because he did not meet the constitutional requirement to be president. “Natural born citizen.”

“His father (and) a Jamaican, his mother is from India, and Harris was not a US citizen when he was born in 1964,” Eastman wrote. “That…doesn't make her a 'natural born citizen.'

in days, Trump took up Eastman's argumentwho cited him as “a lawyer of the highest caliber and most able.”

Newsweek immediately repudiated Eastman's article. In an editor's note, the magazine attempted to refute objections that it was tied to “birther” claims that Barack Obama was not born in the United States, saying instead that the article was airing a formal legal debate. Two days later, it issued a second note, which read: “This op-ed is being used by some as a tool to perpetuate racism and xenophobia. We apologise…. We completely failed to anticipate the way the article was interpreted, distorted and weaponised.

Before examining the consistency of attacks on birthright citizenship, a few words about Eastman. While dean and law professor at Orange County-based Chapman University's Fowler School of Law, Eastman's activities as Trump's lawyer sent his career into a dark hole.

Eastman was instrumental in promoting Trump's false claim that the 2020 election was stolen from him, and on January 6, 2021, he addressed the crowd at Trump's Washington rally, which led to the attack on the Capitol that day.

A week after that rally, Eastman and Chapman reached an agreement under which he agreed to Retirement from UniversityEffective immediately.

In January 2023, the State Bar of California initiated impeachment proceedings against Eastman, citing efforts to promote Trump's baseless claim that the election was stolen. After more than a month of trial in the State Bar Court, the verdict was delivered on March 27, 2024 Bar judge Yvette Rowland found Eastman guilty 10 of the 11 state bar charges and recommended his disbarment.

Rowland ruled that Eastman “made numerous false and misleading statements in court filings and other written statements in his professional capacity as President Trump's attorney.”

Under state bar rules, unless Rowland's recommendation of disbarment remains, Eastman is not qualified to practice law In California. His license was also suspended by the Washington, D.C., bar. He faces criminal charges in Georgia and Arizona related to the 2020 election; Both cases, in which Eastman has pleaded not guilty, are pending. None of these cases involved the issue of birthrights.

Eastman is still fighting the impeachment based on his position that his actions on Trump's behalf are protected by his 1st Amendment free speech rights and that his claims about the election being rigged were not knowingly false. Oral arguments before the state bar court are scheduled for March 19. If the impeachment recommendation stands, the final decision will be made by the state Supreme Court.

Which brings us back to the issue of birthrights. The 14th Amendment was enacted in direct response to the Supreme Court's infamous Dred Scott decision in 1857, which held that enslaved people and formerly enslaved people of African descent could not be considered citizens under the Constitution.

In its very first line, the amendment expressly states, “All persons born or naturalized in the United States, subject to the jurisdiction thereof, Citizens of the United States.”

Legal discussion of birthrights analyzes the “subject to its jurisdiction” clause.

Most legal scholars—and courts that have considered the issue—accept the prevailing decision that it mainly excludes the children of foreign diplomats and ministers and those occupying foreign armies under the jurisdiction of their own countries.

(Native American tribes were also initially excluded on the grounds that they claimed tribal sovereignty, but they were brought under the protection of the amendment in 1924.)

Some critics argue that since there was no “illegal immigration” in the United States in 1868 and no immigration restrictions, the amendment could not have granted citizenship to the children of illegal immigrants.

This is a dubious claim, writes constitutional scholar Garrett Epps. “'Illegal aliens' are subject to the 'jurisdiction' of state and federal legal systems. They can be arrested, prosecuted (even to death) in US courts every day, and prosecuted in civil courts.

It's unclear what Trump can do about birthright citizenship. Repeal of the 14th Amendment would require a new constitutional amendment, a long and complicated process.

Some experts have said that Congress could act to redefine the “scope of authority,” but Rogers M. of the University of Pennsylvania, a leading expert on the topic, Smith also “Minority scholars who thinks Congress can act” to exclude the children of undocumented immigrants.

Trump can be expected to overturn this, as the current Supreme Court majority has abhorred its own precedents — whether it will overturn a precedent that has stood for more than a century is implausible.

The Supreme Court's support for a broader definition of birthright citizenship lasted until 1898, in a decision involving Wong Kim Ark, in which the citizenship of a Chinese citizen born in the United States was challenged because his parents had no right to become citizens themselves. The court rejected that challenge.

In a 1982 case, all nine justices agreed with undocumented immigrants. “Even after they illegally entered” For the United States, under the 14th Amendment.

A striking feature of birthright citizenship is that the broadest definition is supported not only by progressives but also by conservatives. Published by Newsweek A rebuttal to Eastman's article in 2020 Conservative UCLA law professor Eugene Volokh. At the same time libertarian The Cato Institute hit back at Eastman's claims. And on Inauguration Day, Cato's director of immigration studies, David J. Pierre called out Trump's executive order, “”Blatantly unconstitutional An attack on American heritage, the rule of law, the Constitution, and indeed Americans.

In reality, the main issue with birthright citizenship is not constitutional law. It is political, and its politics are intense. The issue is inextricably tied to the notion of America as a beacon of racism and white supremacy.

Since the enactment of the 14th Amendment, a standard against birthright citizenship has been legal scholarship. Rachel E. Rosenbloom observedNoting that resistance is typically framed in “a highly racialized language of crisis and invasion”.

A proponent of a proposed 2009 California ballot initiative aimed at cutting public benefits for undocumented immigrants, for example, asserted that “illegals and their children” were involved. “Invasion through the birth canal.” (The measure was not included in the ballot.)

Trump has repeatedly used the rhetoric of racism and invasion to justify his attacks on immigrants. “They are Poisoning the blood of our country“Immigrants from Africa, from Asia, from all over the world. They're pouring into our country,” he said at the rally in 2023.

Opposition to birthright citizenship arises alongside concerns about immigration, especially when the latter has racist elements. The Wong Kim Ark case was designed as a test of the Chinese Exclusion Act of 1882; The 1982 case arose as a challenge to a Texas law that denied funding for the K-12 education of undocumented immigrant children. (The Supreme Court struck down the law.)

Eastman told me in 2020 what he called a “false accusation” that he questioned Kamala Harris' birthright citizenship “because she's black.” He points out that he's been reading and writing about so-called birthright citizenship for nearly 20 years, not just black politicians, but “in all kinds of contexts.”

Although Eastman denies racist intent, the same innocence cannot be ascribed to Trump and his immigration policy team. In his January 20 Executive order relating to border securityHe repeated the “language of crisis and invasion” – “Over the past 4 years,” the order says, “the United States has endured an unprecedentedly large-scale invasion.”

Indeed, the ideological basis of the attack on birthright citizenship has not changed in 127 years.

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