OA 1094/Transcript

An annotated transcript of Opening Arguments episode 1094: “Please Stop Spreading Panic About Denaturalization” dated 2024-12-02.

Stats

• Date published: 2024-12-02
• Hosts: Thomas Smith, Matt Cameron.
• Podcast source: (Apple)

Trancript

Opening music

You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is your mission. That is your moral obligation. That is your mandate. Get out there and do it. Get in the way.

Change happens because people care.

You, the people, have the power to make this life free and beautiful, to make this life a wonderful adventure.

I still believe with all my heart America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong.

The fight for our country is always worth it.

Introduction

THOMAS SMITH:

Hello and welcome to Opening Arguments. This is episode 1094. I'm your host, Thomas Smith. That over there is real-life attorney Matt Cameron. How are you doing, Matt?

MATT CAMERON:

Just had a big plate of Thanksgiving leftovers, so I'm a little sleepy, but I'll make it. Doing all right?

THOMAS:

I'm excited today. I feel like this has been something stuck in your craw for a while, or many things.

MATT:

One of them. It's one of them. You know, there are not a lot of things that really annoy me, but unnecessarily scaring non-citizens really annoys me a lot. I really don't think that we should be doing that to people. Unnecessarily scaring citizens is almost even worse because these are people that really should not have to worry about their status. So I want to talk today about two different things, denaturalization and birthright citizenship, and kind of what the actual threats to those are, what the theories are, and how it actually looks for preserving them.

THOMAS:

Yeah, I think it's really important. It's time to clear the air. I mean, there are people really worried about, you know, denaturalization, getting rid of birthright citizenship, and I think the best use of this show is breaking that down. How worried should we be? We want to be realistic, but if there's one less thing we have to worry about, that's great, because you know what? We've got enough of those things. We don't actually need another thing to worry about.

MATT:

We don't. This is way down my list, I have to tell you. And I'm realistic, and this is my thing. I've been thinking about this stuff for 18 years, and I am really not worried about this one. So I'll tell you why.

THOMAS:

Time to feel better, hopefully. All right, well, after this break, we'll get to it.

(commercial break)

Denaturalization

MATT:

Let me just say up front that I'm not an idiot. Neither are you. I don't know, I feel like I have to go on record for this.

THOMAS:

Do we need to start every episode like that? I didn't realize that was the thing we needed to say.

MATT:

Easy disclaimer. And I'm not really an institutionalist, which I think maybe I'm repeating myself now, but I really understand that Donald Trump is lawless, that he's intent on doing things outside the law, but he is not a god king, not yet. And we do still have judges, and we do still have DOJ. We have people who can be prosecuted if they break the law, people who aren't the president.

THOMAS:

And people who have to carry out his will that are probably a little worried about breaking the law.

MATT:

And he's promising pardons, but I mean, do they really want to break the law? So what I'm going to be talking about is the way that the law works right now. And certainly if we're in a position where the stuff I'm talking about today is being wantonly ignored, then we've all got bigger problems, much bigger problems than this.

So just from the beginning, understand that I am talking about the current state of the law. I'm talking about precedent. I'm talking about some very good reasons to believe that even the Supreme Court right now, based on its own precedent recently, would not go for some of this stuff. But at the end of the day, I do understand. But people have been yelling at me. For not getting people worried enough about denaturalization and loss of birthright citizenship and telling citizens they don't have anything to worry about. And I really don't appreciate that, honestly, because I do think that we know exactly who needs to be concerned right now. And we're going to talk to them in another episode when I actually break down what mass deportation, that expression, whatever that means to Trump, what it actually means, who's actually at risk, because we know those things. And those are the people we need to be rallying around right now. But I wanted to start with an easy one and talk about these two subjects.

THOMAS:

Well, let me just say, I appreciate this. It's something I said before, but I think there isn't any value to maximum cynicism, maximum worry all the time. That's not valuable. Like, you can do that yourself. You can do that at home. In the comfort of your own home, you can just say, well, there's no laws, nothing exists. It's all the worst that it's going to be. You don't need a show for that. I'm going to save you some money or some time. Don't listen to anyone if that's all you want to hear. What we're trying here to do is help us kind of triage, help us focus on what really needs to be focused. If there's something that is less of a worry, it's valuable to know that.

MATT:

And if this happens, this kind of stuff we're talking about today, we will see it coming from a very long way away. There's going to be a lot of groundwork that's going to have to be laid. And certainly if it starts to change and it looks like I have to change my opinion, I'm here for it. I'll be back to do that. That's right. That's right. But, you know, I keep getting all this weird, like, I guess I'd call it like doomerous fanfic thrown at me about like, well, what if the state department stops issuing passports or revokes passport of natural born citizens or whatever. I don't know. I mean, sure, that person could be charged with a crime for denial of civil rights. Like, I mean, there's all kinds of things that could happen. Maybe that person would completely get away with it. Maybe we'll get to a future where a dystopian government can just do whatever it wants to do to people. But again, we're a law show. We're going to talk about the law as we know it right now and as we foreseeably see it happening. So I guess I just have to give that disclaimer.

MATT:

All right. So speaking of the law, let's talk about denaturalization first. This is the easier of the two, I think, to knock out.

THOMAS:

I mean, it's something we covered when I actively am rooting for it for Elon Musk. And I think we should do it. I think Biden, go out a legend, do it, man. Find a way, denaturalize him.

MATT:

You know, and he is somebody who has some reason to be concerned. He's in the category of people, I would say, you might want to think about that if you get on the wrong side of Donald Trump, because he's got something on you. But it's a pretty narrow category, as we're going to see. And fortunately, as it should be, this is the single hardest thing for the government to do to somebody who's not born in this country in terms of immigration. It should be, because it's a very difficult thing to prove. Yeah. And it's a huge thing to do to somebody when they have taken the effort to become a United States citizen with the point at which they cross over to naturalization. We treat them as one of our own. They get to vote. They get to travel. They get to live wherever they want and come back, you know, without any trouble. And they can't be deported. So, you know, they have these built-in rights. And I really don't want people who are listening to this who have naturalized to worry about that status. Now, there is only one way, really, that you and I could lose our citizenship as people who were born here. And that's if we actually go in front of a diplomatic or consular officer and ask to have it renounced it.

THOMAS:

That's right.

MATT:

So that's a long process. You can't just kind of spontaneously decide. But who was it? The co-founder of Facebook did it, right? For tax purposes. He was Brazilian.

THOMAS:

Oh, really?

MATT:

Turned out Brazilian. And a lot of people have done it for tax purposes. A lot of top one percenters. So that's something, if you want to do it, that you'll know that you're doing.

THOMAS:

I'm a fan of tax savings,

but that's, I mean, that seems a little extreme. Yeah, it's pretty extreme.

MATT:

Well, I will say that, and this is something that people should know before they're naturalized. We are one of, we're one of the only countries on earth that actually makes people pay taxes on their income, no matter where they live in the world, forever. That is unusual. I don't think there are very many countries that do that. So, because there are a lot of U.S. citizens out there that either don't know that or are just counting on the IRS not finding them. And the IRS has occasionally made efforts to find them because they're often pretty wealthy. So just so you know.

THOMAS:

Well, there won't be much of an IRS in the new administration, so.

MATT:

Yeah, I guess so. So naturalization typically is going to be for somebody who's been a resident, a lawful permanent resident for more than five years, three if through marriage and can pass the basic exam, civics and English. And, you know, I just want to be very clear about this because people often talk about people showing up in the United States and just becoming citizens. And that is not how it works. That's the last step in the process. And you have to get through a lot of things first and you have to have a basis.

THOMAS:

Well, the first step is you have to vote for Democrats in sanctuary cities. And then, and only then.

MATT:

Yeah, that's very well known. I hope everybody understands that.

THOMAS:

It's an MLM. If you find like a hundred other immigrants to vote illegally, then we let you in. It's how it works.

MATT:

This is absolutely our secret plan and it's going great, obviously.

THOMAS:

Yeah, isn't it cool how well it worked? Boy.

MATT:

Yeah, yeah. But Elon Musk still talks about how the Democrats' big plan is to import people and make them citizens. And that's just not how it works, as he knows.

THOMAS:

He literally talked about like, wow, these immigrants are coming in and having more children than, and we're like, dude, you're an immigrant with like 25 kids, you idiot. It's the weird, these narcissists. The rules do not apply.

MATT:

No, no. I think within the next year or two, he's going to get on Donald Trump's bad side pretty badly.

THOMAS:

Oh yeah, I don't think it'll take that long.

MATT:

We'll see what happens. And again, I'm not rooting for anybody in citizenship to be taken away, ever.

THOMAS:

I am rooting for his, yeah.

MATT:

But you know, I wouldn't be too mad.

THOMAS:

I don't know what this weird like principled stand you're taking over rooting against his citizenship being taken away. I don't know what you're talking about. I am actively rooting for that.

MATT:

Yeah, it might be better for all of us. It's true. So denaturalization is not common because it's very hard to do. It has to be done in front of an actual federal judge, not an immigration judge. And if it's in the course of a criminal case, of course, it has to be proven beyond a reasonable doubt. And if it's in the course of a civil case, it's a very high standard as well that the government has to meet that we'll talk about. But this made some news under the Trump administration because in 2020, they set up a new denaturalization unit in DOJ. And they, I think, effectively doubled the number of attorneys who are working on reviewing potential denaturalization cases. Now, the government has always made efforts to denaturalize people, but usually pretty extreme cases. There was a little, a swath of Nazis who've been denaturalized because they lied about having been Nazis. Yeah, most famously, Ivan Demjanjuk was a concentration camp guard and responsible probably for the deaths of thousands of people.

THOMAS:

And he made the mistake of not building us any rockets.

MATT:

So yes, that's right. So no use for him. That's right. But one of the questions is if you've been involved with any kind of genocide or war crimes or other things of that nature, that's one thing that you can lie about. But, you know, again, these are extreme cases. They have been historically. They've been people who lied about things to that level, not just kind of like checked the wrong box somewhere or, you know, put the wrong height or weight on the application. Like, that's not the kind of thing we care about. In fact, the Supreme Court, as we're going to talk about, has said it has to be a lot more than that. This has made headlines again recently because Project 2025 talked about in one sentence, just mentioned in passing. I'll just read actually so we know what we're talking about. This is something that just made a lot of hysterical headlines. I think it's worth reading.

Other structural changes should include re-implementation of the USCIS denaturalization unit, an effort to maintain integrity in the system by identifying and prosecuting criminal and civil denaturalization cases in combination with the Department of Justice for aliens who obtain citizenship through fraud or other illicit means.

So again, they're just saying we need to reestablish what Trump already did, build back the denaturalization unit. The denaturalization unit under Trump, I believe, successfully only managed to denaturalize about 125 people, maybe something around that, in four years.

THOMAS:

Seems like not zero.

MATT:

Not zero. Certainly, it's not great for those people. But again, it's a long, arduous process. And they can't just arbitrarily take away somebody's citizenship. And it's designed that way. You have to have the U.S. attorney involved. You have to have a judge involved if it's going to a criminal case that you can have a jury. And, you know, it is just not something that Emperor God King Trump can do by himself.

So criminal denaturalization is required under 18 U.S.C. 1425 for people who are convicted of certain kinds of naturalization fraud, such as unlawful procurement, attempts to procure naturalization, or providing documentary evidence of naturalization that's false. And that has a 10-year statute of limitations. And again, it has to be proven beyond a reasonable doubt. But the more common form of denaturalization is civil, which doesn't have any statute of limitations, which is a little concerning. And that's initiated by a complaint in your local district court where you live. There are a few different grounds for denaturalization all around. And I just want to review how narrow these are. The one that anybody listening is least likely to have applied to them is that if you refuse to testify before a congressional committee on alleged subversive activities, you could be denaturalized.

So, yeah. Been a while since we had those, but who knows? That could happen again. If you naturalized through wartime military service, which was not uncommon in the last couple of decades, and were dishonorably discharged, you could potentially, within five years of that dishonorable discharge, be denaturalized because that was the basis of your naturalization. There's the criminal denaturalization we already talked about. And then the most common is going to be illegal procurement or concealment or willful misrepresentation under INA 340A. You have to have illegally procured your citizenship by a concealment of a material fact or by willful misrepresentation. So, the fact is, if this applies to you, you almost certainly already know it because you have lied to the government in a material way, in a way that got you citizenship. And I'll give you an example here from the actual form. Here's a very popular question on the N-400. Under the relevance section, you've got question 15. And if you really search within your heart to answer this question, there's only one answer to this question that we can all have. But it's not the right one.

Have you ever committed, agreed to commit, asked someone else to commit, helped commit, or tried to commit a crime or offense for which you were not arrested?

MATT:

You're not under oath today, Thomas, but I think that if we really think about it, we have all committed a crime for which we were not arrested.

THOMAS:

Oh, really?

MATT:

Well, sure.

THOMAS:

I don't know. What kind of crime?

MATT:

Strictly speaking, if you've ever, for example, been in possession of marijuana or jaywalked or littered or done pretty much anything. Now, these aren't disqualifying offenses, but they are technically, if you are saying “no” to that and they find out that you've actually committed a real crime, something that would have actually affected your naturalization, they can come back on you. And technically, even now, possession of marijuana is a criminal offense. I'm not trying to scare people. That's very unlikely. But, you know, that is sort of the most general, vague question. It's one in most cases is the only one that people should give you pause to think about.

THOMAS:

Yeah.

MATT:

But the, the fact is that, you know, I always tell my clients this is not a confessional booth. Like, we're not talking to a priest here. You don't have to confess all of your sins. Our concern is the stuff for which you know that you've already been charged by the criminal justice system and, you know, either had those cases dismissed or held responsible. And they have a lot of different questions about your different contacts with the police and with court cases and things that you might have been convicted of. And that matters a lot because naturalization is the last chance that the system has to get a look at you.

So if you try to lie about, for example, this is very popular, having been convicted of an offense in your home country. If you're just counting on the fact that maybe your home country's records aren't good enough and they're not going to find out and you actually, you know, committed a very serious offense that would have gotten you denied residency and you lie about it, that's going to come back later. This is a real catch-all kind of question. But I don't want to put the fear in people. This is not something that is going to apply unless you know for sure that you are concealing an actual serious crime that would be deportable. It can't just be that along the way in your time in the United States that, you committed one of the minor little things I'm talking about. And the way this is most likely going to be used is if it comes out later that you actually had been involved in, I don't know, drug trafficking, right, during the time that you were applying for citizenship and you said that you've never committed a crime and they come back and say, well, look, you just got convicted of drug trafficking, you lied about that in your naturalization, we could start denaturalization proceedings.

So that is one way it could go. But there's a 2017 case which I wanted to make sure that we talked about which I think is very instructive for what the Supreme Court thinks about this right now. And the reason I think it's so important is that this was a unanimous case. This was a 9-0 and it was written by Elena Kagan. And in the case, I hope I don't get this wrong, but the case was Maslenjak. And it was reviewing a case of a woman who testified in her husband's asylum proceedings and lied in those proceedings. And it turned out she had also lied in her refugee application. But the jury instructions, when they tried to denaturalize her for saying that she had procured her citizenship illegally, the phrasing question was obtaining citizenship illegally. So the question was, could it just be that along the way you did some illegal stuff? And the answer was very clearly. And they were really at oral argument. I listened to the oral argument on this one a while back. They were very strict with the government on this one. They were not happy with the arguments the government was making. Breyer said, got a few quotes here, that “it would throw into doubt the citizenship of mass percentages of all naturalized citizens.”. John Roberts said that “you could have a real problem of prosecutorial abuse and the government had an opportunity to denaturalize anyone they wanted under this logic.”. Kennedy said “it demeans the priceless value of citizenship” for them to just come in here and say, well, because, you know, somebody had something along the way, even if it's not directly relevant, because the law is pretty clear that it has to be material to your naturalization. It has to be that you lied about something that if you had told them, they would have possibly denied your naturalization. It can't just be anything. And Kagan uses the example in this of, if someone is charged with procuring a painting illegally and he actually bought it at an auction, but he made an illegal turn while driving, right? He procured it illegally because, you know, getting to the auction house, he committed a small violation, right? She's saying it's kind of that level that we don't want to give the government any kind of excuse. This, again, is 9-0. Alito wrote a concurrence, but he was on board with the logic and with the holding.

THOMAS:

So the key was, oh, you lied, but that wasn't related to, like, your naturalization or anything.

MATT:

Right. You committed a misrepresentation. Now, in the end, you still could be, it still could be found because of previous things she'd also lied about. There still could be an issue, but the issue in this case was the jury instructions that were given, which were far too broad about procuring naturalization illegally and didn't talk about the material misrepresentation requirement. And the court made it very clear, and this is in 2017, it's not that long ago, the Supreme Court, current Supreme Court, made it very clear that they care a lot about it being material and it has to be actually related to the naturalization proceedings themselves.

So, yeah, because in that case, over the defendant's objection, the jury instructions included a statement that even if the statement was not material and did not influence the decision to approve naturalization, they could still find it guilty, and they did. So you can see the problem there. We don't want that as a precedent for anything along the way. And that's kind of what I'm hearing people talk about is this idea that they could go digging and find anything at all. I've had multiple people ask me, well, I've been on the streets protesting for Gaza, right? And I give money to Jews for Peace and other organizations. You know, they're going to say I'm a terrorist and denaturalize me.

And there are all kinds of reasons for the moment. Again, not legal advice, and if you're really that concerned, you can have a consultation with a qualified immigration attorney to talk about it. But I do not want people in this situation who naturalized many years ago to worry about this kind of thing. And if we're getting to the point where an organization like Jews for Peace is classified as a terrorist organization, maybe that could turn out to be different. But again, we're way ahead of things here, and we'll know. You know, this is not something we have to worry about right now. And I'm very concerned about how many people are getting anxiety over this. And I just want to be realistic as we are as often as possible on this show about an actual assessment of the risks and what's going on here. And as you said, as a triage, these people are way off the list.

THOMAS:

We know that they've wanted to designate Antifa as a terrorist organization. Is there, if we're talking about like the darkest timeline thing, do they do that and then just start accusing anyone who's done anything lefty as being Antifa kind of thing?

MATT:

I want to talk about that because that's something, I'm glad you remembered that because a lot of people have already forgotten that there was that last push right at the end of the Trump administration to designate an organization that is not an organization that really doesn't exist as a terrorist organization because that is a very dangerous thing. I meant to mention one of the other ways that you can be denaturalized is if you become a member of or affiliated with the Communist Party, other totalitarian party or terrorist organization within five years of his or her naturalization. So even if you are concerned about donations you've made, it has to have been within five years and that's just black letter law.

So, you know, again, if we do go down the very darkest version of this where they're just willy-nilly calling people Antifa, which certainly could happen. You and I could end up being Antifa. There's a foreseeable future in which this happens. But we're not there and we'll talk about it if we get there. I just, again, trying to be realistic about where we're at right now.

THOMAS:

Mhmm.

MATT:

So this is something to watch. What they do with this denaturalization for is how they use it and the kinds of cases they start bringing. But this is not going to be mass denaturalization and in fact, if we're talking about logistically, the resources, which are unlimited, they don't have unlimited resources for these things.

THOMAS:

They're having a hard enough time doing normal immigration stuff and they're having a hard enough time deporting people that they want to deport.

MATT:

Exactly. Deportable people, clearly deportable people. That's still not easy. And I want to talk again another episode soon about how that's actually going to work and what it looks like. But for the moment, you're talking about enormous legal resources that would be tied up trying to denaturalize all these people. And sure, if you have a particular political point you want to make, that's happened before. Certainly people like Emma Goldman, who was the Russian radical who was denaturalized and sent back for her subversive activities allegedly in the 20s. You know, and that, that has been used politically. I'm not saying it's impossible. I want to acknowledge that that certainly has happened in U.S. history. But there's no way that they can do this en masse. It's just not going to happen anytime soon. So I hope that's at least somewhat helpful.

THOMAS:

Yep. And like you say, it's again, it's not like these things are physically impossible. It's just that we're not there yet and we'll be keeping a keen eye on it, obviously. And then the first steps along the way, you'll know about it.

MATT:

That's right. And even Project 2025, which they do seem to be following so far.

THOMAS:

Oh, man. Too bad. Who knew? Big apology, by the way. We got that wrong. We had, you know, Trump solemnly swore. He was, he said, Scouts Honor, I'm not going to do Project 2025.

MATT:

Never even read it.

THOMAS:

And we at this show were he seems like a trustworthy guy. I totally believe that.

MATT:

As we so often do. Yep. Fell for it again.

THOMAS:

Hook, line, and sinker. And I was like, man, and I just want to issue an apology. Our bad.

MATT:

Yeah. Well, fortunately, at least for this one, again, it's not saying they're going to mass denaturalize everybody, it's just saying that we should restore what Trump was trying to do with this unit, which only ended up, you know, maybe 150 at the most people, I think. They did refer quite a few people, but it's very hard to get those things going. So that's the most that we can expect for the moment. And this is something I certainly will be watching, along with the next thing we're going to talk about, which is birthright citizenship.

THOMAS:

Oh, all right. we'll take a break and get to that.

(commercial break)

Birthright Citizenship

THOMAS:

Birthright citizenship. Isn't this pretty solidly in the Constitution or am I misremembering?

MATT:

If you're the 14th Amendment, literally, it certainly seems to be.

THOMAS:

Well, that depends. Are we talking about keeping an insurrectionist off a ballot or are we talking about that depends on what our purpose is?

MATT:

Arguably, this is even far more literally understandable than that section of the 14th Amendment, which is section three. This is section one, first sentence, side one, track one of the First Amendment, just directly in. Here we go.

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the United States and of the state wherein they reside.

MATT:

All right. Well, I hope you got some fun bloopers because there's our episode. We're done.

THOMAS:

Yeah. Yeah, it would seem hard. I mean, on the other hand,

MATT:

We got to talk about it.

THOMAS:

There was an insurrectionist shouldn't be on the ballot thing that seemed pretty black and white to me.

MATT:

Sure, sure. But, you know, the mechanism for that was very fuzzy and clearly not something, you know, there was room for debate. There is not a lot of room for debate, but there is a debate happening and I don't want to give it too much air in the same way that we don't want to sit here, you know, talking to the one, one climate scientist who is still saying that there's no human climate change happening. But this theory is getting steam and it's been in the headlines a lot and I want to explain it so that we know how we don't have to take it seriously and we can have a pretty good idea of what's going to happen when it gets up there.

So this is basically what I'm going to do today is just the first class in my immigration policy course where we start by talking about how citizenship works. So I'll take you through some of the basics here just so we're grounded in the fundamentals of citizenship.
So as a starting point, around the world, there are basically two kinds of citizenship. There's, I'm probably going to mangle this, it's a Latin expression, but it's jus soli, which is the law of the soil, and jus sanguinis, which is the law of the blood. So either it's based on where you're born or it's based on who your parents are. And those are the ways. Now we have had birthright citizenship since the very beginning because it is common law. It is how it worked in England. It's what the founders knew. It's what they brought over.

So if you're going originalist, it doesn't seem to be a lot of question that they thought that people born here were going to be citizens. The word citizen appears in the Constitution 22 times, but it is not defined at any point until we get to the 14th Amendment, which, again, as we just read, seems like a pretty clear definition. People born here are citizens. We'll talk about the wiggle room in a second, but the year after the Constitution was ratified in 1790, the Congress passed the Citizenship Act of 1790 to define how people could be naturalized because, you know, again, we had a lot of people at the founding of the country who were not necessarily born there.

So this as close as they to defining citizenship for quite a while,

be it enacted, [et cetera, et cetera,] that any alien, being a free white person who shall have resided within the limits and under the jurisdiction of the United States for a term of two years, may be admitted to become a citizen thereof on application to any common law court.

And it was actually very easy. And right up until, I think, the mid-century, in the 20th century, you could just go down to your local state or federal courthouse and become a citizen. It was a very different process. But free white person, that's all you had to be for two years to get citizenship. And then, again, we're talking about naturalization. I want to be clear. The two things we're talking about today, denaturalization and birthright citizenship, are mutually exclusive. You're going to be one or the other because you're either born here or you're naturalized. And there are people who have birthright citizenship who are born abroad if they're born abroad to an American parent. They don't have to be born here. So that is a form of jus sanguinis that we do have in our system.

Now, the Constitution, again, it's a little loose on all of this because, as we know, there's a natural-born citizenship requirement for president. And to become a senator, you have to have been a citizen for nine years. So they're clearly anticipating some kind of naturalization process by making these distinctions in the Constitution, but they did not bother to define it and nobody really wrote down how birthright citizenship worked. And I would argue, and pretty much all the scholars on this have argued, that it's because everybody understood that we were applying the common law, which was that you were under whatever sovereign territory you were born into, that's where you were a citizen.

Now, the 14th Amendment, I think it gets really short shrift these days because, it was very hard fought. And I mean that literally because, of course, we had to fight a civil war to get to the point that we passed the 13th, 14th, and 15th Amendments in which we gave full rights and equal protection to all people living in the country. And there'd been a fight for many, many years before that.

And I can recommend a great book about this by Martha Jones called Birthright Citizens, A History of Race and Rights in Antebellum America. And she documents through some really incredible research that she did in local court papers and personal papers to try to show how much effort Black Americans were putting into this as freed slaves for the most part, people that wanted to be seen as full citizens because there was this open question through the entire 19th century about whether people who had been brought here as slaves and then freed could be seen as U.S. citizens. At one point, early in Pennsylvania history, they were allowed to vote and then they took that vote away when they realized or thought they weren't citizens. There were all kinds of confusions about this because to go to sea is a lot of, that was a very popular thing for freed slaves to do was to go out to the sea. You had to get a special certificate recognizing you as a seaman and that was your proof of citizenship even before we had citizenship certificates. And those were issued but then southern states would refuse to recognize them. They'd lock people up when they got into ports. There were laws allowing them to do that even though they were considered citizens for other purposes. It was chaos. It was a mess. And it wasn't until we got to the 14th Amendment that we had a strict definition of people born in the United States subject to the jurisdiction thereof are citizens. And I think we really need to appreciate the many, many years of fighting and advocacy and writing and the many allies along the way that tried to bring these cases in and to say that these people were citizens.

And of course the most famous of those cases is the worst case in Supreme Court history. The one that we all recognize at this point as the worst, the baddest one. And that is Dred Scott v. Sandford, 1857. And Dred Scott, technically speaking, is still on the books as good law. It just happens to have been overruled by the 14th Amendment. The Supreme Court has never actually come back and said they were wrong on this one, I don't think. But they don't need to because the Constitution overruled it. But, you know, as you might remember, Dred Scott was simply bringing to the court the question of, you know, I was born in Missouri. Am I not a citizen now that I'm not enslaved? And Roger Taney, who was pretty famous for this kind of thing, wrote some pretty horrific stuff in this case and explained about how there's a certain class of people who were brought here and that they are an unfortunate race that they're, beings of an inferior order altogether unfit to associate with the white race either in social or political relations. And, of course, the very famous line about how they have “no rights that the white man is bound to respect”. Again, the Supreme Court Justice writing in 1857. And this is as this issue is starting to tear the country apart. Obviously, it will drive it to war in a few years after that. And I like to tell my students, you have to think about Dred Scott as an immigration case because it's defining the limits of citizenship. And in a very literal way, it actually is because, Martha Jones makes the point that at this time, there was an active conversation happening about what was called the colonization movement. And there were two colonization movements. There was one with white people and one with black people. And, of course, the one with white people was trying very hard to find a way to send all the former slaves away. And Lincoln was sympathetic to this idea in establishing Liberia where they could go and relocate after slavery was ended because they were very concerned about what might happen if we kept a lot of people around who had been treated this badly.

THOMAS:

Yeah. I remember famously after, like, speaking with Frederick Douglass, who's getting more and more oppressed these days. That's when Lincoln kind of changed his mind on that based–. By my memory, was what I thought.

MATT:

Yeah. But there was actually, briefly at least, a conversation about mass deportation of former slaves, about sending them forcefully back to Africa. And the black population had very good reason to be concerned about this because they were watching the Indian removal process happen. They were watching these mass relocations of natives. Andrew Jackson certainly had no qualms about moving people around forcibly. So this was part of the drumbeat as well to get them to be declared citizens so they would have the right not to be deported, which is such a strange thought now that that was actually part of the conversation.

So because, you know, the conservatives today will talk about how the 14th Amendment is a product of its times, how they were only concerned with the citizenship and civil rights of freed slaves and black people generally in the United States. And that certainly is where it came from. But there was definitely this understanding, that they needed to nail this down for history to make sure that we knew that you couldn't deport people who had [been] born here. The history of tribal citizenship, that's a whole other episode, but it took us a very long time to give full citizenship rights to natives right up until 1924, basically.

THOMAS:

Oof.

MATT:

But that's something else. But there are two related cases that I want to talk about before we get into... Because I'm going to give you the best version of the conservative argument so that we can understand at least what they're trying to say. Some of it's been misrepresented, and I think it's, again, overinflated.

But let's talk about these two cases that most clearly define this. And there's a reason the Supreme Court has not revisited this in 126 years. First, in Elk v. Wilkins, which was 1884, written by Justice Horace Gray, we had a man who tried to renounce his tribal citizenship. And he claimed he was a birthright citizen of the United States even though he was born on tribal land. And the Supreme Court found that he owed true allegiance to his tribe and not the U.S., and that Indians and native land are not U.S. citizens that had constitutional support. And that, of course, is a very different issue. from the question of people from other countries born in this country. But Elk v. Wilkins is something that I expect that conservatives are going to be citing more, so I just wanted to mention it.

THOMAS:

That's still good law?

MATT:

No.

THOMAS:

Oh, okay. I was like, then why are they going to be citing it?

MATT:

The logic of it. They want to try to show–

THOMAS:

Oh, okay.

MATT:

Yeah, yeah. But Wong Kim Ark is the heavy hitter here. This is the one that is the golden standard for understanding what the 14th Amendment's birthright citizenship provision is. And this, again, I think it's important because it was written by the same justice, Horace Gray. So the same person wrote these two cases. Clearly, as you can assume, there's a line of continuity here. And this is in the context of the Chinese Exclusion Act, which I'd love to do a full episode on sometime. But as I'm sure you know, there was very strict limits on Chinese people coming into the U.S. as of 1883.

The plaintiff in this case was a man named Wong Kim Ark, who was born in San Francisco. And he left in 1894, and he actually had papers with him that allowed him to return to the United States because he was so concerned about this because everybody knew what was being done to Chinese people coming back into California.

So, I'm looking at this paper, which we'll link to. There's an affidavit here. We, the undersigned, do certify that Wong Kim Ark is well-known to us. He was born in the city of San Francisco, state of California, that his father is a merchant, et cetera, et cetera. So he's got this affidavit with him confirming that he was born in the United States and that he's allowed to return back from China. And so he tries to come back after visiting family in 1895, and he's held for five months.

THOMAS:

Five months? Oh, wow.

MATT:

This is very common at Angel Island. Angel Island is sort of the anti-Ellis Island. It had, like, a 2% admission rate, whereas Ellis Island had about a 2% rejection rate. So you can see the very clear difference between those two scenarios and the people that they're processing. So he filed a habeas petition to challenge his detention, and this was the case that exclusionists had been looking for because they wanted a clear statement that people born to Chinese nationals were not U.S. citizens, and that is not what they got. They got a clear statement very much in a different direction, the other direction. Justice Gray found that the clear word and manifest intent of the 14th Amendment were that anyone of whatever race or color domiciled with the United States when they give birth to that person is a citizen.

[It]affirms the ancient and fundamental rule of citizenship by birth within the territory

…

[The] exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born in foreign public ships, or of enemies within and during a hostile occupation.

MATT:

We'll come back to that.

… and with the single additional exception of children of members of the Indian tribes.

MATT:

So,

To hold that the 14th Amendment of the Constitution excludes from citizenship the children born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other … ancestries.

THOMAS:

I mean, this really just belies the racism of it. Like, I'm sure so many people in our country feel like this makes sense. Well, it's foreigners and they come and have a kid and that kid gets to be the, yeah, okay, but that's all of us. If only, the only citizenship was people who were born here, I don't know, before the time of the country, I mean, there'd be, there'd be a lot fewer citizens and they wouldn't be white.

MATT:

How far back do you want to go?

THOMAS:

Yeah, exactly. And it's like, it's so arbitrary and the unstated thing is, “yeah, but if they have the skin color that I am cool with, then I don't really question it much.”

MATT:

That's really what it comes down to. And that's literally what Gray is saying here. I mean, it's so obvious that he's saying, well, hold on, this is going to affect the citizenship of English, Scotch, Irish, or Germans. Right?

THOMAS:

Yeah.

MATT:

We can't go applying this rule to the Chinese if we don't want it to come back on us. But it is a clear, unequivocal statement and the Supreme Court has never questioned it, never challenged it, and there has never been a serious argument against it. I will just mention, in 1982, in Plyler v. Doe, which is the case in which the Supreme Court found that all school children have the right to go to school no matter their immigration status. The government in that case was trying to argue the children in that were not persons within the jurisdiction of the state of Texas and they didn't have the right to equal protection of Texas law. The Supreme Court completely rejected this, as Justice Brennan writing.

And whatever his status under the immigration laws, an alien is [surely] a “person” in any ordinary sense of that term.

THOMAS:

You would think.

MATT:

Good to know. Thank you. Yeah, appreciate that.

Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law.

THOMAS:

And you think this is safe? I don't know.

MATT:

This is not directly relevant, but I also want to mention this footnote here because, of course, I've got to mention a footnote.

THOMAS:

Sure, yeah.

MATT:

We have never suggested that the class of persons who might avail themselves of … equal protection guarantee[s] is less than coextensive with that entitled to due process.

To the contrary, we have recognized …

“… [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.”

And they specifically cite the 14th Amendment and that there's no plausible distinction between the jurisdiction that's over resident aliens and people who unlawfully entered. And that's, again, that's 1982. And that's not directly an immigration case, but it's just really making the point that there's no reason to visit Wong Kim Ark. The 14th Amendment means what it says. And that has generally been, now, I will say, generally speaking, there has been kind of a fringe, wingnut, view of this that subject to the jurisdiction does not mean subject to the jurisdiction. That it means if you are a non-citizen from another country that you're actually subject to the jurisdiction of that country, which doesn't make a lot of sense if you think about it for five seconds because if you kill someone, you're going to be subject to the jurisdiction of United States law. That's how that works. And I've heard this argument that somehow, oh, sure, there's legal jurisdiction if they commit a crime, but it's not political jurisdiction, which isn't a thing. I know. I know.

They have to really stretch on this one. And I'm not saying they couldn't. I'm not saying they couldn't get there, but it is a stretch to the point that, I'm sure you're familiar with James Ho of the Fifth Circuit. He's a very conservative justice. It does seem like right now he is trying out for Clarence Thomas' seat and he may well get it. But James Ho has been a fierce defender of birthright citizenship. In 2009, he wrote the definitive guide to it from the American Immigration Council with Margaret Stock, who's one of my immigration law heroes. Got to talk to her a while back. And other luminaries, and very, very strong, firm defense in saying there's really no other way to read this, originalist or otherwise, we have to say that everybody born in this country is a citizen. And we'll come back to James Ho, but I think it's notable that somebody who's now considered to be one of the nuttiest people on the Fifth Circuit as of 2009 and onward, even more recently, has had this opinion.

I went listening to, and again, the things I do for you, the listeners, I went listening to a panel of the Heritage Foundation to try to understand. There's, there's a man named Michael Anton who's been stirring this up. He's responsible for sort of getting this into Trump's head as far as we know. And I tried. I tried to understand it. I really did. I listened closely. Michael Anton's theory, as much as I could tell, is that social compact theory is incompatible with birthright citizenship.

THOMAS:

What?

MATT:

It's the most I've ever heard conservatives talking about consent in my life. He's talking about how you have to consent to the jurisdiction of a country and we have to consent to you. And, you know, this, this is like a right of kings kind of stuff to allow people to just be born on our soil. It's a very theoretical, a very sort of philosophical argument that has no basis in actual law. His mentor, Ed Erlach, also spoke at this panel and just said straight up, well, you know, everyone believes that the 14th Amendment adopted the English common law model of Jus Soli, but, you know, I don't. Pretty much.

THOMAS:

Cool.

MATT:

Yeah, I know. Because again, there is so much contemporary stuff at the time on both sides of this issue of people acknowledging the 14th Amendment was going to allow anybody born in this country to be a citizen. And there were some people including Andrew Jackson who did not like it. The Civil Rights Act of 1866 passed over Johnson's veto. And one of their arguments is that they chose not to include the word “allegiance” in the Civil Rights Act to define citizenship. And, you know, this is before the 14th Amendment because allegiance to the king could be temporary. So they changed it to jurisdiction.

And again, what they're trying to say is they're just resting completely on subject to the jurisdiction. And clearly, subject to the jurisdiction was supposed to exclude people who were the children of diplomats. Or, you know, if the king of England came over and his wife had a baby while they're visiting, right? I mean, we can't have that person being a citizen necessarily. That kind of thing. There are people who are in the United States who are not necessarily subject to our jurisdiction in that way. But that's a very limited class of people. Now, that is different from the thing that James Ho was recently asked about that made headlines.

And I wanted to mention that since that was a thing. He was asked in a very theoretical way about this new theory, this new, even nuttier, theory that has popped up that has suggested that if we classify the people who are in this country without permission as invading aliens, that somehow we could say, because there's this language I read you before about how, obviously, if we were under invasion, if China was just full-on invading the West Coast and they had soldiers that started giving birth in hospitals, we could say, potentially, those people are not U.S. citizens because you're not supposed to be here at all. You're actually forcefully invading us. That is a very unusual situation that is, never happened.

And this freakish, ghoulish, wingnut theory would require a finding that a Honduran immigrant who came here escaping gang violence and had a child was an invader. That they were just coming here as, and again, that has a very specific legal meaning, an invasion. It has to be something that's actually sanctioned by the Honduran government. That's not happening. Honduras is not just invading us. Mexico is not invading us. Despite the language that you keep hearing. Yeah. Because, you know, this thing that Ho said really made headlines and got people saying, okay, well, this is it. You know, as soon as it gets to the court, they're going to overturn birthright citizenship. And this is what he said.

Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others.

So he's even there saying, like, even my guys agree with this.

But birthright citizenship obviously doesn't apply in case of war or invasion. No one, by knowledge, has ever argued that the children of invading aliens are entitled to birthright citizenship.

So, nobody's actually argued that they're not either, at least not in front of a judge. So if that's where you want to go with it.

THOMAS:

Also, they didn't do the terminology of “invading aliens” because that's not real.

MATT:

Yeah, right. You know, there is this, in Wong Kim Ark, there's the language I read you before about during a hostile occupation, you know, of enemies in our territory.

THOMAS:

Sure, that makes sense.

MATT:

That would make a lot of sense. I mean, it would be a weird loophole if you could just come over here and an invading army could just bring over a bunch of pregnant women and start giving birth. But that's the way they talk about it. And there is such a thing as birthright citizenship tourism. I will acknowledge that does happen. You can buy a package for, and these are going to be very, very wealthy people around the world, often from Russia and China. You can buy a package and come over here and have a really nice hospital visit in a deluxe suite and you can give birth and that child will have a U.S. passport. And I'm not saying that's not potentially a problem, but that is a very, extremely limited class of things that's happening that is not a common issue. And for the most part, the chaos of undoing this, which I'll talk about at the end, would far outstrip any benefit you think it might have in the short term.

So let's hear about Trump's perspective on this and what he actually wants to do. I'm going to start with, yeah, I know. We couldn't get through this without hearing Trump's voice. I'm very sorry. It's okay. So 2015, here's a conversation that caught my ear back then.

THOMAS:

2015, wow.

MATT:

Yeah.

THOMAS:

Several insurrections ago. That's so...

MATT:

This is not long after he announced. This is very much on his mind. This is a conversation with Bill O'Reilly and I regret to inform you that Bill O'Reilly sounds pretty reasonable here.

BILL O'REILLY:

A lot of the illegal immigration and, not only that, the drug trafficking, which is out of control. So I support the wall. But then you say, well, we've got to have mass deportations. That's not going to happen because the 14th Amendment says if you're born here, you're an American and you can't kick Americans out. And then if you wanted to deport the people already here, each and every one are entitled to due process and it would take decades to do that and gazillions of dollars and the courts would block you at every turn. You must know all that.

DONALD TRUMP:

Bill, I think you're wrong about the 14th Amendment and, frankly, the whole thing with anchor babies and the concept of anchor babies. I don't think you're right about that. I think it's going to be proven that you're wrong.

O'REILLY:

you want me to quote you the amendment? If you're born here, you're an American. Period. (Matt Cameron: Close enough.) Period.

TRUMP:

But there are many lawyers, many lawyers are saying that's not the way it is in terms of this.

MATT:

Many lawyers. He always like to cite the Claremont Institute.

THOMAS:

Yeah, many lawyers are saying, God, what a different time. 2015, the way he's talking to them, like this is some clown that's not going to be a,

MATT:

Yeah

THOMAS:

You know, and then, look at now, he's taken over everything. It's just, wow. Wow.

MATT:

Yep. No, I wanted to go back that far just to show not only was this very, within the first few months of his campaign, this is on his mind, but, you know, I want to acknowledge this is something that Donald Trump has apparently believed to the extent he believes anything for quite a while and want to do something about it. It's not new. And he certainly didn't do anything about it in his first term. There was some talk about it. And there have been various legislative ideas about how to undo this, but it's generally been agreed this is a constitutional issue.

So now, we're being promised that he's going to sign an executive order. So let's hear him talk about his plans for, this is from Agenda 47.

THOMAS:

That'll do it.

MATT:

Yeah.

THOMAS:

Which is totally not Project 2025.

MATT:

No. Very different thing. Also something he hasn't read.

THOMAS:

Entirely.

MATT:

It's on donaldjtrump.com, but.

THOMAS:

He's like, I haven't read it. This one I do want to read. I just lazy. I haven't gotten to it.

They come from jails, prisoners, some of the toughest, meanest people you'll ever see. The United States is among the only countries in the world that says that even neither parent is a citizen nor even lawfully in the country, their future children are automatic citizens the moment the parents trespass onto our soil. As has been laid out by many scholars, this current policy is based on a historical myth and a willful misinterpretation of the law by the open borders advocates. There aren't that many of them around. It's amazing. Who wants this? Who wants to have prisoners coming into our country? Who wants to have people, who are very sick, coming into our country? (THOMAS: He's riffing. I feel like he's gone off-script, Matt.) People from mental institutions coming into our country. And come they will, they're coming by the thousands, by the tens of thousands. (M: I'm waiting for the part where he talks about the border. ) As part of my plan to secure the border on day one, (THOMAS: There was a cut. Clearly they were, like, “alright…”. ) my new chairman office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship. It's things like this that bring millions of people to our country. And they enter our country illegally. My policy will choke off a major incentive for continued illegal immigration, deter more migrants from coming, and encourage many of the aliens Joe Biden has unlawfully let into our country to go back to their home countries. They must go back. (M: Okay, sure. ) Nobody could.

MATT:

So by finding out their children won't be citizens, this is the thing they came for, was to have babies who are citizens. And I think maybe people know this, I hope people know this, but you don't just automatically get residency or citizenship by having a child here. I can't say that strictly enough. You have to wait 21 years until that child becomes a 21-year-old U.S. citizen to file for you. And even then, if you've been here illegally and entered without permission, you're going to have a very long, long road ahead of you.

THOMAS:

Boy, these people are planners.

MATT:

Yeah, long-term thinkers.

THOMAS:

They're invading, they're timing their pregnancies so that they come here. Then they're waiting 21 years. And then, you know, I want some of these industrious folk to make up our population.

MATT:

Americans can barely keep a savings account.

THOMAS:

Exactly.

MATT:

So what Trump is talking about here is an executive order that they've been kicking around for a while. And, you know, obviously, when I talk about Trump can't do things, I mean that legally this is something you can't do. But I do believe that as soon as this order were signed, that there will be an injunction immediately because the ACLU will take this to court. What will happen is, under this executive order, the children of people who can't prove their legal status, and they're going to limit it to, this is going to be even worse, they're going to limit it to U.S. citizens are lawful permanent residents.

So if you have DACA, or temporary protected status, your children would still be considered to be undocumented. I know. So what they can do, obviously, the most that you can do with an executive order is to direct the Social Security Administration to not issue a social security number and to not issue passports from the State Department. So that's what they're going to be doing. That's how the executive order will work.

And, you know, and the first time, and the ACLU is ready to go, hair trigger, I'm sure they have the basics of this suit already outlined, and as soon as one of these agencies refuses to issue one of these documents for one of these babies, they're going to be rushing to the best court that they can find for it, and they will get a permanent injunction. There is no way that this will not get an injunction in a federal court because the harm is so overwhelming. And the legal theory here is so on the fringe that it just has to qualify to get an injunction. So during that, during that time, none of this will happen. There will just be an injunction in place until the Supreme Court reviews it.

And at this point, we have to ask, what happens when this reaches our current U.S. Supreme Court in its current composition?

THOMAS:

Yep. Yep.

MATT:

And do they really want to do this? I will argue to you that this would be, and again, we're talking about prospectively. He's saying children born from this date forward. He's not talking about retroactively revoking everybody's citizenship. Maybe if they got a win on this, they'd try to go back and do that, but that would be absolute chaos. But this would be chaos enough. Because I would argue to you that this would be immediately more consequential than Dobbs and potentially far more consequential because it immediately renders a whole lot of people born, you know, after a certain date undocumented. They don't have a country. And so now, you're creating a much worse situation even than just having undocumented people. You've got people that would have to actually go to some effort to get passports from the countries that their parents are from to prove their citizenship there. And they'd be among us and completely, not even second-class citizens, they would just not even be people, really, for the purposes of the federal government. Which is the idea. That's what they want, obviously.

Does the Supreme Court want to sign off on this? Because potentially, we're talking about increasing significantly the size of the undocumented population. You're talking about creating a whole subclass of people that just don't have any rights.

By the way, when you have jus sanguinis, which is the law of the blood, which a lot of Europe has, you end up with situations like they have in France and Germany where people born to people living in France and Germany are not French or German citizens. And that has caused a lot of civil unrest, as you can imagine. They're completely outside society. You've got riots. You've got people that are living in terrible conditions that never feel included. And you've got institutionalized xenophobia.

THOMAS:

What are they citizens of? They just don't get to be citizens of anything?

MATT:

They're still considered citizens of the countries their parents are from.

THOMAS:

Well, those countries probably have a say in it. It's not like they get automatic citizenship from another country, do they?

MATT:

Right. So, well, if your parents are, yeah, again, that really depends. I can't speak on all this.

THOMAS:

It depends on the other country, right?

MATT:

Right. If you're from Turkey and your parents have claimed a Turkish citizenship, you could apply for Turkish citizenship at that point. But you're never going to become an actual full voting member of France or Germany. And that's by design.

THOMAS:

Wow.

MATT:

And that's what they're trying to do here. But we have had birthright citizens for all this time. And it's not unusual. A lot of countries still haven't. But the system shock of trying to process what you're going to do with this, because then you're throwing it to Congress, right? Which is never a good idea. At the point at which you've got people who are not getting social security numbers and passports, Congress is going to have to figure out what to do with them, what their status is. And the immigration authorities will have to decide if they want to start deporting these people who were born here, which is a very unusual situation as well.

THOMAS:

Jeez.

MATT:

Yeah. So this theory, as I said, has no basis in any Supreme Court precedent. There's no deeply rooted right to the opposite of birthright citizenship. And arguably, I mean, not even arguably, if you're talking about deeply rooted rights, birthright citizenship is absolutely one of them. It goes back quite a ways. So again, I know better than to take these people, you know, on their own terms, at their word. I know that they're hypocrites. I understand that if they want to get somewhere, they're going to get somewhere. But the originalist argument for this is extremely weak.

And again, for what it's worth, call me naive. I don't know. Because again, obviously there are a lot of people who thought that we would never get to the point where there would be an individual right to own a firearm in the United States. The Second Amendment, right, was always read to mean that that applied to militias. There's a famous quote from Warren Burger about how the gun lobby's interpretation of the Second Amendment is “one of the greatest pieces of fraud, I repeat, fraud, on the American people, by special interest groups that I've ever seen in my lifetime.”. And of course, that became, thanks to Antonin Scalia, became the law, that interpretation of the individual right to own a gun. Not saying things can't charge.

THOMAS:

Well done, Burger.

MATT:

That's right. So, you know, maybe I will end up being the Warren Burger of the future here. And having said that under all precedent, there's no way that they can actually reconsider this and do it. I'm not going to say no way. I'm not going to say it's impossible. I'm just going to say it's going to be a long fight. And even if Trump starts doing this day one and denying these things, as I'm sure he will try, there will be an injunction. That I am absolutely secure in saying. It's about as secure as I've been saying anything on this show, that there's no way that a court is going to allow that to go forward without full review.

So this, again, in terms of triage, in terms of the people we need to worry about right now, babies being born on our soil, not so concerned. I'm going to talk in later shows about the people that I am concerned about and what we could do about them. And again, we'll be able to watch this. We'll see it coming. We'll be able to follow the arguments. You know, step by step, we'll take you through it as it comes. My message, I guess, today is just that this is not something to worry about for the moment. And if it needs to be, we'll talk about it.

THOMAS:

Yeah, I hear you. I think that, I don't know, part of me while you were saying that was, on the other hand, I can take this as a really, really horrifying preview of what could be possible. But I hear you. I mean, there's so many steps along the way. There's so many other horrible things before then, which I guess is encouraging? But no, this is good knowledge. This is good information. If any of these steps along the way happen, obviously you'll be the first to know. We'll be keeping an eye on that. But yeah, we shouldn't be spreading this panic unnecessarily.

MATT:

Not at all. And especially, I've been seeing people saying that it'll be applied retroactively, which isn't even what Trump is asking for, as you heard in that video, he's saying prospectively going forward. And that would be absolute chaos. That would tear this country apart. I mean, my grandmother, when she tried to travel abroad for the first time, had the hardest time getting her own birth certificate to prove that she was born in the United States. Imagine if everybody in the United States right now had to prove their citizenship so that they could prove that their kids were born here. And it's just that that's...

THOMAS:

Crazy.

MATT:

This happened in the Dominican Republic when they denaturalized a bunch of Haitians and, you know, just an openly racist, xenophobic thing. And it caused all kinds of problems. It's still causing problems. Again, not to say it couldn't happen, not to say they might not try it. This is something that the Heritage Foundation at this point has become dogma for them, that they're saying since at least 2018, I could find, that they've been arguing that birthright citizenship doesn't mean what it says.

So, you know, again, I'm not saying that we may not be seeing signs that this could start to turn around. But even what James Ho there said isn't reconsidering necessarily his fundamental position. I haven't seen anything, unless I've missed something, that James Ho has said that he's reconsidering the things that he's already written about his firm defense of birthright citizenship. And even in that quote I read you, he was still saying that he still acknowledges the precedence from the people he agrees with.

THOMAS:

All right. Well, I, for one, feel great now. No, I'm just kidding. Thanks for that breakdown. I know this is something you've been wanting to get off your chest for a while. So stop scaring people unnecessarily, everybody. Thanks so much, Matt, for the breakdown.

Thanks for listening, everybody. Hey, please support the show. Please share the show. If you see anybody scaring someone, you know, maybe send them our way.

MATT:

I'll set them straight.

THOMAS:

Yeah, exactly. All right. Thanks so much, and we'll see you on Wednesday, everyone.

Outro

This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

Bloopers

MATT:

Let me just say up front

that I'm not an idiot.

See also

• Wikipedia:OA 1094/Transcript

External links

• bk4, reboil.com