Topic category:  Constitution/Constitutional Crises

Mark Levin is an American lawyer, author, and host of The Mark Levin Show. He was chief of staff for Attorney General Edwin Meese. He understands the Constitution. Last week he appeared on "Hannity" to rebut the notion that "anchor babies" have a constitutional right to United Stated citizenship, noting that Article 1, Section 8 of the Constitution grants absolute power to Congress to establish a uniform rule of naturalization. To those insisting that the Constitution would have to be amended to prohibit "anchor babies" from automatically becoming United States citizens, Levin explained that (1) "[i]f you want a policy of open borders, that anybody born here should become a United States citizen, you amend the Constitution. We don’t have to amend the Constitution. It says what we say it says," and (2) "[b]y statute, going forward, prospectively, Congress can in fact say … ‘No, you cannot make children of illegal aliens American citizens automatically.'"

Levin actually knows what he talks about.

Sadly, the same cannot be said of Fox News' Bill O'Reilly.

"On...August 19, 2015, Bill O’Reilly argued with Andrea Tantaros about a Supreme Court decision from 1985, INS v. Rios-Pineda [471 U.S. 444]. He vociferously claimed he was right and Ms. Tantaros was wrong (as was Donald Trump the previous night) about so-called anchor babies, children born in America to illegal aliens living here. O’Reilly said INS v. Rios-Pineda was the definitive and declarative issuance of the Supreme Court regarding the Fourteenth Amendment’s provision that people born in America are automatically American citizens. In fact, O’Reilly was and is wrong. The case had nothing whatsoever to do with the Fourteenth Amendment and anchor babies. It had to do with the Attorney General’s discretionary ability to deport people who are here illegally" (http://pjfusco.com/?p=3075).

EXACTLY!

Fox News' O'Reilly is not a lawyer and never went to law school. Nevertheless, he freely offers legal opinions.

Sometimes he's right.

So is a broken clock.

O'Reilly should stop treating a passing reference in a United States Supreme Court to "anchor babies" as United States citizens as a definitive pronouncement on constitutional law, study the history of the Fourteenth Amendment to glean its intent and apologize to Angela Tantaros and Donald Trump.

Justice John Marshall Harlan II explained in Afroyim v. Rusk, 387 U.S. 253 (1967}, that the sponsors of the Fourteenth Amendment believed that citizenship needed to be defined, lest freed slaves be denied citizenship under the "reasoning" of the Dred Scott decision, "good law" before the Civil War and notorious since.

Granting United States citizenship to "anchor babies" was NOT intended when the Fourteenth Amendment was enacted.

In 1898, in United States v. Wong Kim Ark, 169 U.S. 649, the Supreme Court ruled that a child born in the United States to legal immigrants was a United States citizen. It did not address the issue of the citizenship of an "anchor baby."

"Anchor babies" received a mention in an 1982 Supreme Court case in which it was not an issue.

Therefore, that mention is merely dicta, not holding.

Dicta: "The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material" (www.lectlaw.com/def/d047.htm).

Holding: "any ruling or decision of a court" (http://dictionary.law.com/Default.aspx?selected=873).

That's a distinction O'Reilly obviously did not appreciate when he bellowed his simplistic take on the Citizenship Clause of the Fourteenth Amendment at Donald Trump on "The O'Reilly Factor": "If you are born here you are an American, period, period."

O'Reilly's take on United States citizenship is simply wrong.

For example, a child of a diplomat fortuitously born in the United States is not a United States citizen at birth.

As Ann Coulter passionately put it (http://dailycaller.com/2015/08/19/no-the-14th-amendment-doesnt-guarantee-birthright-citizenship/):

"The anchor baby scam was invented 30 years ago by a liberal zealot, Justice William Brennan, who slipped a footnote into a 1982 Supreme Court opinion announcing that the kids born to illegals on U.S. soil are citizens. Fox News is treating Brennan’s crayon scratchings on the Constitution as part of our precious national inheritance.

"Judge Richard Posner of the 7th Circuit Court of Appeals is America’s most-cited federal judge — and, by the way, no friend to conservatives. In 2003, he wrote a concurrence simply in order to demand that Congress pass a law to stop 'awarding citizenship to everyone born in the United States.

"The purpose of the 14th Amendment, he said, was 'to grant citizenship to the recently freed slaves,' adding that 'Congress would not be flouting the Constitution' if it passed a law 'to put an end to the nonsense.'

"In a statement so sane that Posner is NEVER going to be invited on Fox News, he wrote:

'We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship.

"Forget the intricate jurisprudential dispute between Fox News blowhards and the most-cited federal judge. How about basic common sense? Citizenship in our nation is not a game of Red Rover with the Border Patrol! The Constitution does not say otherwise.

"Our history and our Constitution are being perverted for the sole purpose of dumping immigrants on the country to take American jobs...."

Whether or not that's true, the Fourteenth Amendment was not enacted to make "anchor babies" United States citizens to be used by their parents to circumvent United States immigration law.

In Phyler v. Doe, 457 U.S 202 (1982), the United States Supreme Court held that a Texas statute which (1) withheld from local school districts any state funds for the education of children who were not "legally admitted" into the United States and (2) authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."

Whatever his status under the immigration laws, an alien is a "person," the Supreme Court declared. Prior Supreme Court cases treating illegal aliens as "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments were deemed indistinguishable, even though those Clauses do not include the phrase "within its jurisdiction."

The argument that persons who entered the United States illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws was dismissed as unsupported by "the logic and history of the Fourteenth Amendment."

The use of the phrase "within its jurisdiction" was interpreted as confirming the understanding that the Fourteenth Amendment's protection "extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory."

The issue in the case was NOT whether "anchor babies" are United States citizens.

After all, Justice Brennan began the majority opinion this way: "The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens."

The sharply divided Supreme Court's answer to that question did not depend upon whether "anchor babies" are United States citizens.

"Anchor babies" are NOT "undocumented school-age children." Their parents are eager to have United States birth certificates for them and to use them to stay in the United States long before they are school-age. The Fourteenth Amendment does not make them United States citizens, because it was never intended to do so.

Apparently Footnote 10 to the majority opinion somehow convinced O'Reilly that "anchor babies" are United States citizens and that's all there is to it.

Footnote 10 states:

"Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that '[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .' (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term 'jurisdiction' was used. He further noted that it was 'impossible to construe the words "subject to the jurisdiction thereof," in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words "within its jurisdiction," in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."' Id., at 687.

"Justice Gray concluded that '[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.' Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, 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. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912)."

Ann Coulter amusingly refuted that assertion (http://dailycaller.com/2015/08/19/no-the-14th-amendment-doesnt-guarantee-birthright-citizenship/):

"FNC’s Bill O’Reilly authoritatively informed Donald Trump on Tuesday night: 'The 14th Amendment says if you’re born here, you’re an American!'

"I cover anchor babies in about five pages of my book, Adios, America, but apparently Bill O’Reilly and the rest of the scholars on Fox News aren’t what we call 'readers.'

"Still, how could anyone — even a not-very-bright person — imagine that granting citizenship to the children of illegal aliens is actually in our Constitution? I know the country was exuberant after the war, but I really don’t think our plate was so clear that Americans were consumed with passing a constitutional amendment to make illegal aliens’ kids citizens.

"Put differently: Give me a scenario — just one scenario — where guaranteeing the citizenship of children born to illegals would be important to Americans in 1868. You can make it up. It doesn’t have to be a true scenario. Any scenario!"

There is none.

Just as there is no evidence that the Fourteenth Amendment was enacted to create a constitutional right to abortion.

Perversion of the Fourteenth Amendment is intolerable, and O'Reilly needs to stop being simplistic and study thoroughly before he purports to speak definitively on a legal issue that shouldn't be beyond his comprehension, but turned out to be because he did not take due care.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.