The Darsch Report: July 26 to August 1

Bexar County Mental Health

On Mon. July 26, Bexar County officials announced that a pilot program that brings mental health professionals together with Bexar County sheriff’s deputies will expand less than a year after its formation.

    In October, the Bexar County Commissioner’s Office allocated $1.5 million toward the Specialized Multidisciplinary Alternate Response Team (SMART). Under SMART, dispatchers who identify a mental health call send a clinician and trained paramedic to the scene. Deputies will respond to the scene if they’re needed, but the goal is to keep people suffering from mental health crises out of jail.

Initially, the group was operating on a limited basis, but they will now operate for longer hours after refining the process.

    Bexar County Sheriff Javier Salazar stated that the program has “surpassed expectations” and that “working with our other partners, it just fell together.”

The full briefing can be watched here.

Texas Bans Mask Mandates

    On Thurs., July 29, Texas Governor Greg Abbott signed an executive order prohibiting local governments and state agencies from mandating vaccines, saying that protection against the virus should be a matter of personal responsibility, not forced by a government mandate.

    “To further ensure that no governmental entity can mandate masks, the following requirement shall continue to apply: No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face-covering or to mandate that other person wear a covering,” the executive order read.

    Local government entities that institute mask mandates may be fined up to $1,000.

    The order also specifies that government entities cannot “compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization.”

Governmental agencies, public entities, and private entities that receive public funding cannot require people to provide proof of vaccination as a condition of receiving services.

The order, however, does not stop nursing homes or living facilities from requiring residents to be inoculated.

Abbott defended the move in a statement, arguing, “Today’s executive order will provide clarity and uniformity in the Lone Star State’s continued fight against COVID-19. The new Executive Order emphasizes that the path forward relies on personal responsibility rather than government mandates.”

Biden, Congress Allow Eviction Moratorium to Lapse

A nationwide moratorium on residential evictions expired on Saturday, July 31, after a last-minute effort by the Biden administration to win an extension failed, putting hundreds of thousands of tenants at risk of losing shelter, while tens of billions in federal funding intended to pay their back rent sit untapped.

    Unable to fight the Supreme Court on further extending the moratorium, the Biden Administration gave the responsibility to Congress on Thursday. However, after an unsuccessful rally by Democrats on Friday, the House of Representatives went into Recess and could not draft any quick legislation.

    The Senate, meanwhile, has been focusing its efforts on finishing the bipartisan infrastructure plan.

    Efforts to bring relief to renters and homeowners have been further struggling. To date, only $3 billion of the $47 billion Emergency Rental Assistance program has been disbursed.

“Really, we only learned about this yesterday,” said Speaker Nancy Pelosi, who had publicly and privately urged senior Biden Administration officials to deal with the problem themselves.

Many Democrats are still voicing anger and frustration, though, with Democratic leadership.

Rep. Alexandria Ocasio-Cortez (D-NY) said Sunday, Aug. 1, that Democrats have to “call a spade a spade” after the deadline expired.

“We cannot in good faith blame the Republican Party when House Democrats have a majority,” Ocasio-Cortez said on CNN’s “State of the Union.”

Rep. Maxine Waters (D-CA), the chair of the Financial Services Committee, said Saturday on CNN: “We thought that the White House was in charge.”

“We are only hours away from a fully preventable housing crisis,” said Sen. Elizabeth Warren (D-MA) during a floor speech in a rare Saturday session as senators labored over an infrastructure package.

“We have the tools, and we have the funding,” Warren said. “What we need is the time.”

US Economy

The stock market did not do well over the past week. The Dow Jones decreased to 34,935.47 on Friday, decreasing by -126.08 points, or -0.36 percent over its July 23 close of 35,061.55. The S&P 500 increased by -16.53 points or -0.37 percent on Friday. In addition, the Nasdaq decreased on Friday by -1.11 percent.

DOJ vs. Texas

    The U.S. Justice Department, on Friday, July 30, filed a lawsuit against Texas and Gov. Greg Abbott over an order the Republican governor signed barring ground transportation of migrants who could be carrying COVID-19.  

In a complaint filed with the U.S. District Court for the Western District in El Paso, the Justice Department said Abbott’s order interferes with the federal government’s ability to deal with immigration.

“In our constitutional system, a State has no right to regulate the federal government’s operations,” the DOJ argued in a motion asking the judge to block Abbott’s order, adding “this restriction on the transportation of noncitizens would severely disrupt federal immigration operations.”

Governor Abbott argued that the order was necessary to counter the rise in illegal immigration under the Biden administration and to help stop the spread of COVID-19 across the US Southern border, going so far as to accuse the Biden administration of being complicit in the spread of COVID-19 across the southern border.

“The Biden administration is knowingly admitting hundreds of thousands of unauthorized migrants, many of whom the federal government knows full well have COVID-19,” Abbott said in response to Garland’s lawsuit. 

He also said he would not back down because his “duty remains to the people of Texas, and [he has] no intention of abdicating that.”

San Antonio Urgent Care Reaching Capacity

In San Antonio, both hospitals and local clinics are feeling the effects of increasing COVID-19 cases, with some local urgent care clinics reaching near capacity.

    “We are up about 30% in terms of patient visits from the last week of June, first week of July,” said Dr. David Gude, Texas MedClinic chief operating officer, and practicing physician.

Gude said they are seeing more COVID-19 patients, more COVID-19 testing, and even an increase in vaccinations.

The wait times on their website show just how busy they are.

“We’ve never let go of social distancing. So we either get people into an exam room, or if we’re full, we may ask them to wait in the car, or we may ask them to come back in an hour so,” Gude said.

Gude said staff members are also feeling the pressure. According to Gude, one staff member recently told him it felt like he is “going through the stages of grief right now.”

“He can’t believe that we’re back at the point that we were at. We were just at this point a few months ago and certainly last year,” Gude said.

The Darsch Report: Feb. 4 – 10

Bexar County Child Sex Crime

On Thursday, Feb. 7, a Bexar County Sheriff’s Office records employee was arrested and charged with sexually assaulting a child.

Jose Angel Laines, 44, is currently assigned to the Sheriff’s Office records section and has been employed with the Sheriff’s Office since 2004.

“The disturbing allegations against this 14-year employee go back to at least a decade. We are glad our warrants team was able to get him into custody. We have already initiated termination proceedings and we stand ready to assist SAPD with whatever they may need,” Bexar County Sheriff Javier Salazar said.

The press release said the Bexar County Sheriff’s Public Integrity Unit has begun an administrative investigation into the incident and is working in conjunction with the San Antonio Police Department pending the outcome of the criminal investigation.

Laines has been placed on unpaid administrative leave. He is charged with aggravated sexual assault of a child and indecency with a child by contact and has a $75,000 bond for each charge.

Both the San Antonio Police Department and Bexar County Sheriff’s Public Integrity Unit have started their own investigations into the matter so hopefully, this case will be finished quickly so that the child and their family can begin to move past this horrific encounter.

Migrant Caravan on Texan Border

Since Feb. 4 roughly 1,800 Central American migrants intent on seeking asylum in the US have been playing a frustrating waiting game on the Mexican side of the Texas-Mexico border.

The migrants, who are mostly Honduran, are being housed in a former warehouse in Piedras Negras — and being guarded by Mexican law enforcement — while they wait to be let into the US.

Due to the very slow process of going through these migrants, US Customs and Border Protection officers are only able to process about 16 to 20 of the migrants a day according to CNN. This has lead to high tensions between law enforcement and the migrants with many being told by Mexican officials to return to Honduras.

The Texas Department of Public Safety (DPS) has joined the US Border Patrol in stationing agents in Eagle Pass, Texas — on the banks of the north side of the Rio Grande. They’re meant to deter any migrants who might choose to cross the river instead of waiting their turn in Mexico

“As part of our border security plan we keep DPS on the border with boats & planes. They work with local & federal authorities to enforce the law,” Gov. Abbott tweeted alongside a picture of the law enforcement build up.

US and Mexican law enforcement need to possibly work together and process every single migrant to make sure that they are legitimate asylum seekers and not someone who would pose a threat to the US, Mexico or their citizens.

Green New Flop

Early on Feb. 7, NPR received the Frequently Asked Questions page of Alexandria Ocasio-Cortez’s (D-NY.) Green New Deal. It was immediately criticized by opponents and supporters alike until it was eventually taken down from down NPR’s and Cortez’s website later that day.

The FAQ was specifically ripped apart not for wanting to lower US carbon emissions, but how it plans to do that and the economic policies it proposes. It should also be noted that the Green New Deal is considered a “Non-Binding Agreement”, meaning that even if it passes, Congress is just saying that it will work towards lowering carbon emissions and the other goals laid out in the deal.

The FAQ states that “[i]t guarantees to everyone:

• A job with family-sustaining wages, family and medical leave, vacations, and retirement security
• High-quality education, including higher education and trade schools
• High-quality health care
• Clean air and water
• Healthy food
• Safe, affordable, adequate housing
• An economic environment free of monopolies
• Economic security to all who are unable or unwilling to work…

and a transition away from nuclear to renewable power sources only”

The bill does not state how it plans on providing everyone in the US with these things or how it plans to pay for them. The phrase “economic security to all who are unable or unwilling to work” is especially troubling as it will create an incentive for people to not work as they will be provided with everything that they need anyway “a job… healthcare… food…[and] housing.”

Though many in the US support the idea of a Green New Deal this bill is more of a government take over of the largest industries in America than an investment in renewable energy. Even going as far as to want to phase out nuclear, one of the most efficient and reliable energy sources that have little to no greenhouse gas emissions.

US Economy

It was a decent week for US stocks, with a few gains in the stock market. The Dow Jones increased to 25,106.33 on Friday, increasing by +42.44 points, or +0.17% percent over its Feb. 3 close of 25,063.89. The S&P 500 increased by +1.35 points or +0.05% percent on Friday. In addition, the Nasdaq decreased on Friday by -0.47 percent.

This comes on news that the US and China are still negotiating an end to the trade war with a deadline for reaching a deal by March 1. The economy did not do that well this week but it is still remaining positive. The US has a very volatile stock market at the moment but this volatility should go away by the end of 2019.

Possible Border Deal

On Saturday, Feb. 9, House Majority Leader Steny H. Hoyer said that both Republican and Democratic legislators were optimistic about coming to a bipartisan deal on border security that would avoid another government shutdown.

Hoyer said that he doesn’t know the specifics of the deal, including the amount for border barriers, but does “hope [that] as early as Monday we will hear what that agreement is.” Negotiators last Friday were closing in on a deal that many lawmakers are calling a rebuff to Trump’s demands for $5.7 billion dollars for a wall along parts of the US-Mexico border. Instead, lawmakers are focusing on a compromise that would give no more than $2 billion for border barriers.

Hoyer said that both Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Nancy Pelosi (D-Calif.) will bring the agreement to vote in their respective chambers but it currently appears that Trump may veto the deal with tweets he made about it on Feb. 10. Lawmakers have until Feb. 15 to come up with an agreement that can pass both chambers of Congress and be accepted by Trump otherwise we enter another partial shutdown.

Trump is not in that good of a position depending on what will be in the finalized compromise bill. He will get funding for barriers along the US southern border but many of his supporters may see it as too much of a compromise compared to his original demand of $25 billion back in 2017. Democrats may come out of this worse though as 93% of Democrats and Democratic leaners oppose expanding the wall along the southern border.

The Darsch Report: Jan. 21 – 27

Non-Citizens Voting in Texas Elections

On Jan. 25, Texas Secretary of State David Whitley announced that there are about 95,000 non-citizens in Texas who are registered to vote and that 58,000 have voted in one or more elections since 1996.

This is the result of an 11-month investigation by the Texas Department of Public Safety in which investigators cross-referenced those registered to vote with those who have applied for a driver’s license or state identification card in the last five years with a green card or visa. The information was then sent to the state attorney general’s office which will decide whether or not to pursue voter fraud charges. The attorney general’s office has prosecuted only 130 cases of voter fraud since 2005.

“Every single instance of illegal voting threatens democracy in our state and deprives individual Texans of their voice,” Attorney General Ken Paxton stated. “Nothing is more vital to preserving our Constitution than the integrity of our voting process, and my office will do everything within its abilities to solidify trust in every election in the state of Texas.”

Depending on where these votes were cast since 1996, they could have easily swung any number of statewide and even national elections. Democrats have ignored illegal voting for decades now, insisting that no credible data indicates a problem. In the face of these official numbers, we hope they will start caring about the voting process more than their own reputations.

The Shutdown is Over

On Jan. 25, the United States government has finally been reopened after a shutdown that lasted a record 35 days, costing an estimated $6 billion. The temporary reopening will last 3 weeks ending on Feb 15 during which Republicans, Democrats, and President Donald Trump will attempt to seek a compromise on permanent federal funding.

“I am very proud to announce we have reached a deal to end the shutdown and reopen the federal government,” Trump said, adding that he will continue to seek $5.7 billion in funding for a border wall. He insisted that if he and Democratic leadership can not reach a compromise then he will declare a national emergency to build the wall.

“Walls should not be controversial,” he said. “As commander-in-chief, my highest priority is the defense of our great country… We cannot surrender operational control over our nation’s borders to foreign cartels, traffickers and smugglers.”

Democrats are calling the reopening a victory. “Our unity is our power — and that is maybe what the President underestimated,” House Speaker Nancy Pelosi said.

Many are glad to see at least a temporary end to the shutdown with all 800,000 furloughed employees receiving back pay for the past 35 days. However, this is only the beginning of Trump’s efforts to fund the wall, and unless Democrats are willing to negotiate with Trump it is doubtful a real compromise will be met before another shutdown.

Whataburger Delivers a Helping Hand

Speaking of the shutdown, San Antonio-based fast-food giant Whataburger was the latest company to offer free food to any and all federal employees that were furloughed during the 35-day government shutdown. On Saturday, Jan. 26, from 6 to 11 am they offered food to any federal employee who went unpaid during the shutdown.

The notice said that anyone who showed a valid federal government-issued ID would be eligible for the offer of a free coffee and breakfast burrito. The deal was at any participating location but will not extend to drive-thru and mobile orders.

Whataburger’s communications office said the brand will honor the offer until further notice. In the face of a government shutdown it is great to see private entities step in and help where the government has failed.

US Economy

It wasn’t a good week for US stocks, with very few gains in the stock market. The Dow Jones decreased to 24,737.20 on Friday, decreasing by -153.11 points, or -0.62 percent under its Jan 18 close of 24,706.35. The S&P 500 decreased by -28.38 points or -1.06 percent on Friday. In addition, the Nasdaq had a decreased on Friday by -1.17 percent.

This comes on news from Commerce Secretary Wilber Ross that the US and China are still “miles and miles” away from coming to terms on a trade deal. The stock market was acting relatively positive on news that China has offered to buy over $1 trillion worth of US goods to eliminate the trade deficit, but optimism tanked after Ross’s comments.

Venezuela in Crisis

On Jan. 23, President of the National Assembly of Venezuela Juan Guaido swore himself in as ‘interim president’. The United States, Canada, Brazil, UK, Argentina, Costa Rica, and many other regional allies have backed Guaido’s move, while the countries of Mexico, Cuba, Russia, Turkey, China, and Iran have decided to support Nicolás Maduro’s claim to the presidency.

“As president of the National Assembly, before God and Venezuela, I swear to formally assume the competencies of the national executive as interim president of Venezuela,” Guaidó declared before an opposition rally in eastern Caracas.

President Trump immediately recognized his claim. “I will continue to use the full weight of United States economic and diplomatic power to press for the restoration of Venezuelan democracy,” Trump said.

The US and regional allies were quick to issue their statements due to suspicions that the 2017 Venezuelan presidential election was rigged in favor of the incumbent president Nicolás Maduro.

Venezuelan authorities denounced what they have termed a “coup attempt” led by the United States. “This coup attempt that is being unleashed in the country is the most unwise effort by imperialism and its lackeys in the Venezuelan opposition,” Maduro said to supporters. Maduro has also given all US diplomatic personnel 72 hours to leave the country.

The situation in Venezuela is a unique chance to see if one of the old socialist regimes in the Americas will finally fall and how powerful the US is with her regional allies against the two other superpowers involved, China and Russia. As it currently stands, Maduro’s regime does not look like it has much longer to live in this world bringing an end to another oppressive socialist regime and giving hope to the people of Venezuela.

Gun Owners vs New York City

On Jan. 22, the Supreme Court of the United States agreed to hear its first 2nd Amendment case in a decade, concerning a strict New York City ordinance that bars a legal owner of a handgun from taking it to a shooting range outside the city.

The city says it allows gun owners to seek hard-to-obtain permits to legally carry a handgun if they have good cause. They may also obtain a “premises” permit to keep a handgun at home, allowing them to carry an unloaded handgun to a shooting range inside the city but not to a shooting range outside the city.

Justices will consider the case, New York State Rifle and Pistol Assn. vs. New York, in the fall. If they take the case, then a final ruling is not expected until early 2020.

Their lawyer, former US Solicitor General Paul Clement, urged them to take the issue to a higher court after losing in the US 2nd Court of Appeals. Clement called the “city’s transport ban an extreme, unjustified and irrational restriction on 2nd Amendment rights. … There is absolutely no evidence that transporting an unloaded firearm, locked in a container separate from its ammunition, presents a material public safety risk.”

The New York City ordinance is an extreme and needless burden on the gun owners of New York and the Supreme Court should reaffirm the 2nd Amendment rights of New York citizens and rule this law unconstitutional.

ICE Needs Reform, Not Abolition: a Libertarian Perspective

Crying children. Illegal immigrants locked away in cages. Children forced to appear alone in court. Nothing galvanized the nation over the Trump administration’s immigration policies than the debacle of this past summer, which has even drawn comparisons to the Nazi concentration camps.

By “debacle,” I’m referring to the Trump administration’s announcement of its “zero-tolerance” policy along the U.S.-Mexico border. The policy stipulated that illegal migrants crossing the border with children were to be arrested and detained separately. The administration argued that the policy was geared toward deterring migrants from crossing the border with children and fighting sex trafficking across the border. But the policy had unintended side effects.

It turned out that the policy achieved neither goal. In fact, it ended up separating families with legitimate asylum claims, causing mayhem at the border and across the country. Even though the Trump administration ended the policy of separating families, hundreds of children remain separated from their parents (despite a court order mandating the reunification of families), down from a peak of 3,000 children at the time the administration ended the policy.

But the political fallout has yet to fade away. Multiple prominent Democrats have called into question the legitimacy of the agencies responsible for carrying out the zero-tolerance policy, singling out Immigration and Customs Enforcement (ICE) in particular. Alexandria Ocasio-Cortez, a self-described Democratic Socialist who was recently elected to represent New York’s 14th congressional district, has called for the outright abolition of the agency, joining a growing chorus of Democrats that want to shutter the agency.

There is just one problem: ICE actually performs some useful functions. A quick trip to the ICE website shows what ICE has been up to with regards to deporting criminals, usually posted on the top of the front page of the website. These are good things, as criminals who do not have a legitimate claim to be here should be fast-tracked for deportation. Simply calling to abolish ICE ignores these legitimate functions that the agency is tasked with carrying out. It’s foolhardy and ignorant at best because it dashes any hopes of thinking about practical policy proposals and engaging in thoughtful and rational discussion.

First, we need to separate fact from fiction. Let us start with some history. ICE is only fifteen years old, one of many agencies formed in the post-9/11 frenzy and consolidated into the newly born Department of Homeland Security. ICE’s predecessor, the Immigration and Naturalization Service (INS), was abolished when ICE and a few other agencies took its place. Creating the agency and placing it under DHS was an attempt to quell fears that the government would not do enough in the wake of the worst terrorist attack in American history.

Since its inception, ICE’s responsibilities have included both preventing another terrorist attack from happening through our immigration system and enforcing immigration laws domestically. Left-wing commentators are right in asserting that ICE historically has had little regard for due process in rounding up illegal immigrants off the street and deporting them. They also have a point that the agency is overly concerned with deportations and does not take a humanitarian approach to immigration, which stems from its dual responsibilities of regulating immigration and combating transnational criminals, forcing ICE to take a one-size-fits-all approach where their tasks have zero flexibility and does not tolerate a discretionary decision-making process.

But progressives, who have coalesced with other activists and politicians into the “Abolish ICE” movement, either lack a clear vision for what a realistic immigration system will look like or are trying to push the debate in a direction where a reasonable compromise is not possible. After all, most voters oppose scrapping ICE altogether. Even if voters did support shuttering the agency, without a comprehensive plan to get rid of the bad parts of ICE, the agency’s powers would simply shift elsewhere into another agency, which doesn’t accomplish anything.

Now, in an ideal world, ICE would not exist. Immigrants, both legal and illegal, have far fewer incarceration rates than native-born citizens and are far less likely to commit crimes than native-born citizens. Even when immigrants do commit crimes, it would be better to let local police departments handle it instead of federalizing the issue, as one libertarian commentator proposes. But we don’t live in an ideal world, so we should try to prioritize small government and the right to free movement as best we can. To start, we need to recognize that when families were separated, that was Customs and Border Protection (CBP), not ICE. ICE is responsible for domestic enforcement of immigration laws; CBP is in charge of maintaining security at the border (while I’m on the topic, there are important distinctions between the two agencies, which usually intertwine, complicating efforts to reform them). But for now, my proposal will deal solely with ICE and no other agency.

First, to address the heart of the problem, ICE’s Enforcement and Removal Operations (ERO) needs to go. This is the part of the agency that is responsible for mass deportations, which was kicked into high gear under President Obama and continued under President Trump. This should give civil libertarians pause since ERO has broad police powers in arresting and deporting illegal immigrants. Additionally, budget hawks should note that if the U.S. government were to undertake the enormous task of deporting all illegal immigrants from the country, it would carry a price tag of anywhere between $400-600 billion, even when illegal immigration has a positive impact on the U.S. economy. The only part of the agency that should be salvaged is its removal authority, which should be transferred to the other division of ICE, Homeland Security Investigations (HSI), which is concerned with targeting transnational criminals. This will alleviate ICE of any responsibility to deport non-criminal aliens and refocus its efforts on deporting actual criminals, like gangs, sex traffickers, and terrorists.

Second, ICE should discontinue its Secure Communities program, which was shuttered by the Obama administration after it was revealed that it was profiling, but was revived under President Trump. Additionally, ICE should also shutter its 287(g) program, which allows for local law enforcement officers to enter into partnerships with ICE to help the agency identify and deport illegal immigrants, effectively extending the agency’s authorities into local police departments and turning police officers into ICE agents. Both programs have been weaponized by President Trump against cities who refuse to sign onto or comply with these two programs, with the president calling them “sanctuary cities” and threatening to cut off their federal funding.

Third, ICE should close its “stipulated removal” program, which allows for illegal immigrants to waive their right to go to court and instead be fast-tracked for deportation. This program is inherently rife with due process violations; many undocumented aliens do not understand the deportation process and many sign their rights away without knowing exactly what they are doing. Fourth, the number of beds in DHS detention facilities should be reduced (below 30,000 would be a start), so the department has less of an incentive to keep the beds full with immigrants and therefore, less of an incentive to round up immigrants. Lastly, we should shift illegal border crossings from criminal to civil offenses, which removes the mentality that illegal immigrants should be treated as security threats. This would also take off the burden on the Office of Refugee Resettlement (ORR, an agency within the Department of Health and Human Services), which is currently swamped with cases of children needing to be resettled in the country and forcing unaccompanied children to remain in CBP and ICE custody.

I understand that I’m dealing with old news, but our immigration system has yet to face comprehensive reform that both reflects our nation’s values and keeps our nation safe. Even when the news media, political commentators, and social media shift away from talking about immigration, the effects on those impacted are still there. It’s past time that we seriously consider proposals and start thinking about reforming–and shrinking–the agencies and departments that deal with immigration. This includes recognizing that comprehensive reform does not stem from two-word slogans chanted in the streets aimed at policies that rip apart families, but realizing that our immigration system is much more complex and that serious reform tackles all the parts of the larger immigration machine. Ultimately, I want the country to consider the long-term psychological, economic, and international effects of maintaining a hardline immigration policy, which is not good for anyone concerned with pursuing a freer society where freedom of movement is cherished, not belittled.

The Trump Citizenship Clause

On Tuesday, 30 October, in an exclusive interview with “Axios on HBO,” Trump stated that in the foreseeable future he will be ending birthright citizenship for illegal immigrants through executive order. He said that the idea that a person can illegally come into the United States, have a baby and “the baby is essentially a citizen of the United States … with all of those benefits… It’s ridiculous. It’s ridiculous. And it has to end.” This isn’t the first time that Trump has expressed opposition to this policy, making similar headlines in August 2015 when he was still a candidate in the Republican primary. But can Trump really carry out this action through executive order, and is he right to scrutinize the current understanding of the 14th amendment?

Trump thinking that he can change the constitution or its interpretation through executive order is almost certainly presidential overreach. It is up to Congress and the 50 states of the Union to decide whether or not the Constitution is amended and it is up to the Supreme Court to interpret the Constitution to determine if a law or executive order is unconstitutional or not. If this does indeed go to the Supreme Court then President Trump will be immediately shut down for trying to change constitutional law and interpretation. However, then comes the issue of whether Trump right to say that the children of illegal immigrants are not automatically citizens of the US.

For this, we will have to go back to the late 1800s and look to the men who wrote the 14th amendment and the Supreme Court cases that determined its precedent. First, what does the 14th say? Section 1 reads,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th amendment was written in 1868 as a way for the federal government to grant citizenship to all former slaves and to reaffirm the Civil Rights Act of 1866 due to fear that many states in the Union would not allow former slaves to be citizens and enjoy the rights and privileges provided. Most of the current debate revolves around the key phrasing of “and subject to the jurisdiction thereof” and its relation to the Civil Rights Act of 1866 which granted citizenship to “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”

The purpose of this wording can be found by looking to key figures on the drafting and ratification of the 14th amendment. Senator Jacob Howard (R-MI), a sponsor of the citizenship clause, stated it “is simply declaratory of what I regard as the law of the land already,” further explaining with “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” When asked what the phrase “and subject to the jurisdiction thereof,” meant Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee, stated “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” Senator Howard would actually respond to this stating “I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States… that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Now since only US citizens can own complete allegiance and are subject to the “complete jurisdiction thereof” to the United States this exchange would suggest that only the children of American citizens can automatically become citizens. It also works in Trump’s favor that the Supreme Court has never ruled on whether the children of illegal immigrants automatically become citizens of the US since they were born the US. The closest case that has been ruled on was from the 1898 case of United States v. Wong Kim Ark. In the case, it was ruled that the children of a Chinese immigrant couple who immigrated to and resided in the US legally were deemed US citizens. Another case often cited is the 1982 case of Plyler v. Doe where the ruling was a 5-4 vote but which contains a dictum, meaning that the ruling was based on opinion and is not binding.

However, until Trump actually issues the executive order we can not know for certain what the reaction from Congress and the Supreme Court will be. Until this action becomes reality all we can do is speculate as to whether or not this action is unconstitutional and whether or not Trump would be right.