Streetwise Professor

The immigration issue is the subject of the most intense coverage right now, just as it was arguably the most important issue in the campaign. The issue has numerous facets. Here are a few observations on several of them.

Birthright citizenship. Trump eliminated it by Executive Order (“EO”). He did so on day one no doubt knowing that the issue will be litigated to the Supreme Court and he wants it decided ASAP.

This immediately elicited shrieks of “it’s unconsitutional!!!!!” Not so fast.

These statements are based on an 1898 Supreme Court decision, which established birthright citizenship on a given set of facts. Moreover, the decision was based on an application of common law, rather than the Constitution. The justices at the time basically used common law to fill a purported gap in the Constitution, specifically the 14th Amendment. This reliance on the common law was challenged (in a dissent) at the time, and the dispute over this continues.

The issue then, and the one on which any future decision will turn, is the language of the clause in the 14th Amendment italicized here: “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.” By ordinary principles of statutory and Constitutional interpretation, the clause must mean something. Moreover, it clearly qualifies the previous clause: if the amendment was intended to establish unqualified birthright citizenship, the clause would not be necessary, and indeed would be superfluous.

So what does it mean? It has to mean something more than “born in the US because the US has jurisdiction over the US,” which is what the ardent defenders of birthright citizenship claim.

An interpretation that squares with the debates over the Amendment, and the previous statute that it was intended to protect from challenge or repeal, is that it means “subject to the jurisdiction of no foreign power.” That is, subject to the sole jurisdiction of the US. An immigrant that comes here is potentially subject to the jurisdiction of his/her home country. By this reading, the children of parents subject to such jurisdiction would not automatically be citizens.

My GGGF’s citizenship paper says something like “I, Georg Pirrong, having foresworn my allegiance to the King of Germany” (quoting from memory). Which implies that previous to his naturalization he was presumed to have such an allegiance, and was therefore potentially subject to German jurisdiction.

It should also be noted that the Amendment was established when all immigration was legal, so the status of the children of illegal immigrants was not explicitly considered by Congress when the Amendment was enacted. Furthermore, this issue was clearly not what the 14th was about: it was obviously about putting the citizenship of black Americans on a firm Constitutional footing. The facts in the 1898 case also do not match up with the issue of birthright citizenship for the children of illegal aliens: the plaintiff in that case was born in the US prior to the restriction on Chinese immigration, and was denied admission to the US when returning from China after the anti-Chinese immigration law had been passed. So, he was not born to illegal immigrants.

The mismatch of facts between 1868 and 1898 and 2025 means this is not an open and shut issue. It will come down, of course, to squishes like Barrett and Roberts, and it is likely that they will go against the EO.

Who Will Pick Our Vegetables???? And build our houses? And buthcher our meat? This is a standard trope from the left and Democrats, wryly answered by the Babylon Bee:

Democrats Once Again Concerned About Who Will Pick Their Crops https://t.co/gkWTemIree pic.twitter.com/PbksCkaIUo

— The Babylon Bee (@TheBabylonBee) January 27, 2025

To which it must be added that it is an utterly ridiculous argument. There are (on the upside) 3 million farm workers in the US, half of whom are illegal. That figure comes from an advocacy organization. Government data is weirdly out of date: as of 2000 there were about 1.13 million hired farmworkers in the US. (That is from a 2025 USDA document–I haven’t found one with later data–please send if you can find it). Survey data published by the USDA suggest about only 500,000 are employed in crops. Interestingly, that data shows that the average age of hired farmworkers has risen steadily–meaning that recent immigrants (who tend to be very young) are not going into farm work.

There are about 6 million (non-supervisory) construction employees in the US: estimates are that 20-30 percent of these are illegal.

So we are talking at most 3 million illegals in these two sectors, many (if not most) of whom were here before 2021. (Employment in meat packing is less than 100K total, representing perhaps a mere 50K illegals). Yet approximately 10 million flooded in under Biden, not to mention the flow in earlier years, plus the offspring of those who came in during, say, the Obama years. So it’s obviously not the case that the new illegals are vital to sustaining the ag and construction sectors.

The whole issue is absurd on its face. Just what crops are the immigrants in the Roosevelt Hotel in NY picking? The residents of Little Village in Chicago? In any sanctuary city? I could go on.

Enforcing the border with the military. Another freakout is over Trump’s deployment of the military to the border, allegedly in violation of the Posse Comitatus Act. There is a parallel freakout over declaring the cartels terrorist organizations. I don’t think the freakers out see the connection between these two issues.

The cartels are inextricably linked with human smuggling/trafficking. Waves of immigrants also contain numerous narcotics mules. If cartels are terrorists, using the military to combat their activities-including human and drug trafficking-is not purely a law enforcement activity, or even primarily a law enforcement activity. It is something clearly under the purview of the military.

But this country was built by immigrants!!!!! Over the weekend, media midwit Margaret Brennan challenged J.D. Vance on immigration. In her (limited) mind, her killer point was going to be: how can you oppose immigration, because this country was built by immigrants?!?!?

This is another idiotic trope that we hear over and over, along with its frequent fellow traveler, the Emma Lazarus poem about give us your poor yadda yadda. I find it particularly ironic that progressives trot out this line.

For one thing, those who solemnly declare native land acknowledgements think such “settler colonialism” is evil and a historical stain on America-so why do they want to elevate it to a principle that must never be challenged or changed? Aren’t immigrants invading tribal lands?

For another, why are they hardcore conservatives–in the strict sense of the word, meaning “devoted to conserving the past”-on this issue, and not on others? Relatedly, why are those who insist on a “living Constitution” that must change with the times because it was written at a time with markedly different circumstances arguing that immigration laws should not be “living” too? Why do they insist on having the dead hand of the past rule the living?

Because it’s a rhetorical trick that they think will appeal to ordinary Americans who descended from immigrants, that’s why. It’s an emotional ploy.

The circumstances of the United States in the mass immigration era were markedly different than is the case now. Moreover, the immigrants were very different than those coming here now, particularly in terms of cultural similarity to the native population. Crucially, the earlier immigrants arrived when assimilation was strongly encouraged–and often embraced–by the immigrants, whereas now that is considered a racist idea: the cultural differences also make assimilation far more difficult, and many of the new immigrants are militantly opposed to assimilation.

And even more crucially, that immigration occurred in the pre-welfare era. The incompatibility of welfare and open immigration has long been emphasized by libertarians who are pre-disposed to favor immigration, such as Milton Friedman and Richard Epstein. An immigration system that works without welfare is a disaster with welfare. So choose, progressives: unbridled immigration, or welfare.

Along these lines, and related to the earlier discussion of immigrant labor. There are still acute labor shortages in, say, the Central Valley of California, despite large inflows of immigrants to that region (and California generally). Why?: because of the benefits showered on immigrants by the Federal government, and by the state of California. (The rising age over farm workers mentioned above is indirect evidence of this).

Margaret Brennan thought she had cornered Vance with this (tired) question. Vance was having none of it, and trenchantly answered that what we did 240 years ago is no reason to have the world’s dumbest immigration laws today. (If I would quibble with Vance, it is that various European countries, notably Germany, have pretty stupid laws too–it’s a close call as to which is dumber).

It never ceases to amaze that midwits like Brennan think they can play gotcha with Vance after he has run rings around them time and time and time again.

The immigration debate will continue to rage. But I predict the battle lines will not change, and that all of the above will be focus of contention for the next four years. At least.