by Michael Dorf
In the aftermath of NFIB v. Sebelius various commentators (including me) noted that during the period before the case was decided, liberals tended to dismiss as preposterous the arguments that conservatives made for the proposition that the federal government cannot use its Commerce Power to regulate the multi-billion-dollar health insurance industry via a purchase mandate. We liberals didn't take those arguments seriously because we didn't share the conservatives' underlying values and, not sharing them, we under-estimated how much the arguments would appeal to judges and Justices who do share those values.
In my latest Verdict column, I warn that something like that is at least within the realm of thinkability with respect to birthright citizenship. The leading precedent, U.S. v. Wong Kim Ark, makes it very difficult to argue that children born in the U.S. to undocumented immigrants aren't citizens but the question is technically still open under SCOTUS precedents. In a Facebook post last week (not public, as is the nature of FB), Harvard Law Professor Mark Tushnet raised the possibility that we liberals could be making the same mistake of thinking that our reading of the precedents is obvious because we do not share the anti-immigrant sentiment of the Trump-led anti-immigration right. My column adds in the possibility that an anti-immigration Republican president could appoint a few sympathetic Justices.
To be sure, even doing my best to account for my own policy disagreement with the anti-immigration position, I think that the argument for denying birthright citizenship to the children of undocumented immigrants is weak, but then, it's always hard to be sure that one is accounting for one's own biases. In any event, even if we assume that children born in the U.S. to undocumented immigrants are entitled to birthright citizenship absent a constitutional amendment, it is worth responding to the substantive policy argument made by immigration foes. And in order to respond effectively to the argument, it is useful to have a sense of what's driving it.
The anti-immigration crowd's chief stated argument against birthright citizenship is that it leads to what they call "anchor babies"--a term that is widely regarded as offensive. The claim is that undocumented immigrants come to the U.S. to give birth, so that their children will be U.S. citizens and thus "anchor" their claims to stay. As explained in a Washington Post article last week, the claim is surely wrong: Having a U.S. citizen child does not confer any right to stay in the country--although the enjoined Obama Adminsitration program would have created the possibility of temporary deferred action (but not legal status) for undocumented immigrant parents of U.S. citizens (as discussed on DoL by Professor Kalhan here).
In my view, however, the fear of "anchor babies" as incentive is a post-hoc effort to come up with a seemingly rational policy concern. The underlying sentiment is more visceral--and Trump's outrageous claims about Mexico "sending" rapists and murderers taps into its core. It may be helpful to understand the real concern by reference to a Clint Eastwood movie.
Directing and starring in the gripping but disturbing 2008 film Gran Torino, Eastwood plays Walt Kowalski, a bitter widower who remains in his Detroit neighborhood long after the other white people--including his grown sons and their families--have left. Walt is a type that only Eastwood could play: a late-70s (at the time) racist action hero with a heart of gold. He uses multiple racial slurs to describe his Hmong immigrant neighbors. (Partial spoiler alert!) The action centers around Walt's relationship with teenager Thao (played by Bee Vang). Under pressure, Thao reluctantly joins a local gang and must steal Walt's Gran Torino as his initiation. He botches the job and then ends up working for Walt as penance. They eventually become close and Walt--as a kind of aging Dirty Harry--takes on the now-estranged gang to defend Thao and his family.
The story is partly redemptive. We come to see Walt's racist language as superficial. His only friend is a barber of Irish descent, with whom Walt trades ethnic insults, so we are led to think that racism is simply a mask that Walt wears to hide his unexpressable feelings. Likewise, Walt's prejudice against the Hmong--whom he sometimes conflates with the North Koreans and Chinese he fought fifty years earlier--is only superficial. Walt's real disaffection is with the young. He comes to respect his adult Hmong neighbors, but with the exception of Thao and his sister Sue (played by Ahney Her), Walt despises the younger generation. The story's villains are second generation Hmong-Americans--the "anchor babies" their parents would have had if they had been undocumented.
But Walt has no greater respect for white American youth. Early in the film he rescues Sue and a white teenager from a confrontation with three African American teenagers but then condemns the white teenager as a fool or worse. Walt also has contempt for his own grandchildren, whom he regards as lazy and disrespectful. Walt's basic attitude--which he literally states several times in the film--is the bitter old man anthem "get off my property."
To me, that is the underlying meaning of the attempt to eliminate birthright citizenship. Yes, it focuses on immigrants--the angry Americans want to keep them off our collective property--but at bottom this is the cri de coeur of the aging white demographic, upset at least as much by their own grandchildren, with their hip-hop music and their support for same-sex marriage, as they are with the children of undocumented immigrants.
Eastwood's own political views are certainly conservative but complex. During his bizarre performance at the 2012 RNC, Eastwood's chief criticisms of Obama/empty chair were that he didn't do enough to bring down unemployment and that he was naive in thinking the war in Afghanistan was winnable given the Soviet experience. These are not the complaints of a conventional right-winger. Moreover, like all great art, Gran Torino cannot be reduced to a linear message or moral. Nonetheless, Gran Torino does seem to be a morality play, even if an unconventional one. The film plainly treats Walt Kowalski as a complicated but ultimately sympathetic hero. Walt believes in real virtues, like loyalty, personal responsibility, respect, courage, and, most of all, retributive justice. We can acknowledge that these are virtues without endorsing Walt's world view, his dangerous nostalgia, his willingness to write off an entire generation, or his blatant racism. We can understand his motivation as not entirely bad without remotely agreeing with his stated views.
So too with the people who would like to eliminate birthright citizenship for U.S.-born children of undocumented immigrants: Their rage may well be misdirected anger that begins in something not entirely ignoble; but they should be opposed nonetheless.