Once again, the unelected federal courts are violating Congressional authority over the most important societal question: who is allowed to become a member of our society?
As we’ve explored in detail in recent months, throughout our history the courts have always stayed away from questions of immigration and citizenship, with the understanding that a sovereign nation has the right to determine who enters its society and on what conditions a person is admitted to that society. In a representative democracy, those decisions are made by the elected branch of government. Unfortunately, the modern judiciary thinks otherwise, and as I warn in Stolen Sovereignty, the courts will completely take over immigration if they are not stripped of their ill-gotten powers.
Last July, the 2nd Circuit engaged in the ultimate usurpation of power and “struck down” (as if they have the power to do so) a longstanding statute governing citizenship of children born outside the country to an American father out of wedlock. Under existing law in place since 1952, it is easier for an unwed citizen mother to transfer citizenship to her child born abroad than an unwed citizen father. The mother must have been residing in the U.S. for only one year at any time prior to birthing the child abroad. On the other hand, the unwed father (if the mother is a non-citizen) must have resided in the U.S. for 10 years, with at least five of those years occurring after the age of fourteen (for those children born between 1952 and 1986).
In this case, Luis Ramon Morales-Santana was born in the Dominican Republic to a Dominican mother and an unwed father (at the time of birth) who was a U.S. citizen. However, his U.S. citizen father only satisfied the lenient residency requirements of a would-be unwed mother, not the stringent requirement for an unwed father. Now, Morales-Santana probably could have gotten away with claiming his father was transgender thereby being treated like a U.S. citizen mother, but I digress.
Morales-Santana sued for citizenship asserting that the statute violates… you guessed it… the Equal Protection Clause because it treats unwed fathers differently than unwed mothers. He was going to be deported in 2000 after he was convicted of various felonies, but were he entitled to citizenship he would obviously be spared from deportation.
Last year, the 2nd Circuit actually sided with Santana and struck down the statute. Why do I bring this up now? This was such an egregious power grab that, ironically, even the Obama administration just filed a petition for writ of certiorari with the Supreme Court, noting that this is an area of law solely reserved for Congress. Now, it would be nice for the administration to recognize this power when it comes to DACA and DAPA but it tells you something that the courts are to the left of the Obama administration as it relates to citizenship and immigration.
The reality is that the people’s representatives have the right to set any residency criteria for parents of children born abroad. Indeed, it wasn’t until 1934 that Congress made citizenship of children born abroad transferable through the mother altogether. It is through this statute that people like Sen. Ted Cruz (R-TX) are deemed automatic citizens at birth.
The fact that the courts would extend equal protection to foreign nationals and the conditions for citizenship thereof should leave no question as to how the courts would rule on birthright citizenship for illegal immigrants born in America. It also shows how this idea of amnesty without citizenship, peddled by some Republicans as a compromise amnesty arrangement, is a farce. Undoubtedly, the courts will grant them “equal protection” in no time and mandate judicial amnesty.
Judicial amnesty is a growing problem. If the Supreme Court refuses to hear the case or upholds the decision from the 2nd Circuit, another criminal alien will be allowed to remain in this country against our national will.
This is just another example of why Congress must act now to strip the courts of their illegitimate power over immigration. If America is going to become a nation without borders and a magnet for criminals from around the world, shouldn’t that decision at least be decided by the elected branch of government?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.