>> From WXXI News.

This is Connections.

I'm Evan Dawson.

Well, our connection this hour was made in 1868 when the 14th amendment to the United States Constitution was ratified, and that amendment states the following quote.

The United States has upheld.

I'm sorry.

Hold on.

All persons born or naturalized in the United States.

There it is.

And subjects to the jurisdiction thereof are citizens of the United States and the state wherein they reside.

And this has become known as birthright citizenship, which the United States has upheld for more than 150 years.

Ever since the 14th Amendment to the Constitution was ratified back in 1868.

Now, in the first week of the new Trump presidency, just over a year ago, in January of 2020, President Trump claimed that the United States is the only country in the world that grants birthright citizenship.

He called it ridiculous, said his administration might seek to end the practice.

And soon they did.

Now he's wrong about other countries.

While it's true that a majority of countries around the world do not offer birthright citizenship, roughly three dozen countries do, including Canada, for example, within weeks, the Trump administration sought to overturn birthright citizenship.

Here, for example, is Al Jazeera's reporting on what happened next, quote, a second United States federal judge has blocked President Donald Trump's executive order, which aims to end birthright citizenship for children of undocumented immigrants.

Today, virtually every baby born on U.S.

soil is a U.S.

citizen upon birth, said Maryland District Judge Deborah Boardman.

That is the law and tradition of our country, that law and tradition are and will remain the status quo pending the resolution of this case, she said.

End quote.

So now the U.S.

Supreme Court will hear the case against birthright citizenship on April 1st.

And this spring it's back.

As it turns out, there are Rochester roots to this story going back to the late 1800s, a story I had never heard of.

We're going to get to that in just a moment.

Let me welcome our guest this hour on the program as Richard A. Dollinger.

Judge Dollinger is retired from the New York Court of Claims, recently wrote a piece that's going to be talking about some of the Rochester roots and Connections.

And thank you, judge, for bringing this story to us.

>> Glad to be here, Evan.

Thanks for having me.

>> Next to Judge Dollinger.

Welcome to Lucrecia Knapp, who's an immigration attorney at Mancuso Brightman.

Thank you for being here.

>> Thanks for having me.

>> And on the line with us is Toni Jaeger-Fine.

Tony is a senior counselor at Fordham Law School and principal of Jaeger-Fine Consulting.

Hi, Tony.

Thanks for being with us.

>> We got what do we have?

Tony?

The pleasure.

Oh, there we go.

We got Tony.

so let's start in studio here.

And judge, you reached out to me.

Judge Dollinger reached out to me recently and asked me if I knew the Rochester connection.

Right.

And I did not.

And I had a chance to read one of the pieces that that you have been putting together on the subject.

So why don't you take us through this story?

Because what we are about to hear as a country is a debate about how we decide who is a citizen, whether it's just enough to be born within the confines of this country, or whether that goes against the intention, as it's been argued in court.

Well, turns out there was a Rochester attorney at the center of arguing one of those early cases.

What happened?

>> Absolutely.

Well, let me let me start with a simple, even more historical background.

The interesting thing about the Constitution of the United States is you go to the preamble of the Constitution.

It starts, Evan, what does the preamble start with?

>> We the.

>> People, we the people of the United States.

If what's fascinating about it, when they passed it, they looked around the room and said, well, we know who the people are.

They all are a bunch of white guys in suits.

In 1790 and.

>> Powdered wigs, probably.

>> Correct.

And so, quote, we the people was originally just the people in the room.

That was what it came down to in 1790, in the first Congress, they established citizenship.

They said, if you're a white guy, white man, free white man who's in the United States for two years, you're a citizen.

They eventually in the latter part of that decade, they expanded it to five years.

But what's interesting is they left it to the States to do most of the naturalization.

The states really kept track of who was a citizen because at the time, as you can recall, the states were really the focal point of the United States, and the states had control over naturalization.

The 14th amendment is passed in the wake of the Civil War, and it's designed to give freed or African Americans who had been slaves, citizenship.

And they put in very expansive language that said, if you're born in the United States, subject to its jurisdiction, you're a citizen.

What happens?

And this is where Rochester gets involved.

It was a Rochester trained lawyer named John Norton Pomeroy.

And what's interesting Lucretia and I just had a cup of coffee at the of the Academy building on Fitzhugh Street.

That's where John Norton Pomeroy went to school.

He eventually trained as a lawyer.

He became the dean of the NYU Law School, and he eventually went to Hastings Law School in California and was the initial dean there.

The inaugural dean there.

He got involved in a case in the in 1884 that involved a guy named Look Tin Sing.

Look Tin Sing was born in the United States.

His parents were merchants in Mendocino, California, and his father sent him back to China.

He was born in the United States, sent him.

>> His parents were Chinese, but he was born in the United.

He was born.

>> In California.

Chinese.

They were not naturalized citizens, but he was born in the United States.

He goes to China, he comes back to San Francisco.

And they say to him, what are you doing here?

This is just at the same time when California's aflame with a concern about the invasion of the Chinese, the Chinese Exclusion Act is passed by Congress in 1882 that limited the number of laborers who could come from China to the United States.

There was a tremendous concern in the West Coast that the yellow wave was taking over America.

Anyway, they bar him from entry.

And the question is, is he a United States citizen.

>> Having been born here.

>> Having been.

born here?

The case goes to a circuit court in which a man named Steven Fields, who's a member of the United States Supreme Court.

Back in those days, if you were on the Supreme Court, you still sat in circuit courts around the country.

Fields was from California.

He was not sympathetic to the Chinese.

He is later accused of being a rampant racist against the Chinese for language he uses in other cases, but nonetheless, he sits in on the very first case called this look Tin Sing in the circuit court in California.

John Norton Pomeroy is a friend of fields from Rochester.

He gets recruited by field to come in and represent the government in the case to deny him citizenship.

Pomeroy argues that the phrase subject to the jurisdiction which is in the 14th Amendment, says his parents were aliens.

They were not subject to the jurisdiction of the United States, and therefore, when their child is born, he's not an American citizen.

That is Pomeroy's argument.

Pomeroy was an established constitutional scholar.

He was the dean of the law school.

He was a heavyweight in constitutional practice.

He makes that argument.

Field says you're wrong.

The 14th amendment having been passed only 15 years earlier, specifically says the Constitution will now provide that if you're born in the United States and your parents were subject to the jurisdiction, by that he meant you were under the jurisdiction of the country.

You could be held accountable for a crime.

You could be restricted in what you could do.

You were just like every other citizen, except you didn't have citizenship and fields, in that opinion, says he rebukes Pomeroy and says, you're wrong if you're born in the United States, you're a citizen.

He relies on an 1844 decision from New York, in which the chancellor in New York held that a woman who was born in the United States was an American citizen, even though her family eventually moved to England and she eventually came back to inherit money from a relative.

In order to inherit that money, she had to be a citizen.

The Chancellor in New York in 1844 said, you're a citizen.

You're born in the United States.

That's our common law tradition.

The 14th amendment.

Stephen Field, who was a member of the Supreme Court of the United States, said this is the rule.

That rule is later upheld in a later case involving a Chinese immigrant called Wong Ark, which goes to the full Supreme Court and the full Supreme Court says 14th Amendment was designed to create birthright citizenship irrespective of what happens in any other country.

The if you look at this, the history of the enactment of the 14th amendment, it's specifically designed to create birthright citizenship.

That's what's under attack from Donald Trump's executive order.

>> All right.

Before I turn to your colleagues, let me just make sure I get the history right, because there's a part of this that I don't fully understand.

First of all, what an interesting piece of Rochester history here.

And you've got Pomeroy, who, you know, for all of his legal scholarship certainly was predisposed to view people of color and Asian immigrants specifically as dangerous or problems.

He was prejudiced against them.

So was field and field recruits.

Pomeroy, the Rochester lawyer, because he knows them and says, come argue this case, right.

Argue it against birthright citizenship.

Correct.

And then field says, hey, man, you're wrong.

What it looks like field set him up there even.

>> Well, except field knew, I believe, based on my reading of the cases in my history of researching Field and Pomeroy, he knew that he needed a heavyweight to make the argument because he I think field looked at it and said, and part of this is, remember, this was only 15 years, 16 years after the amendment had passed, field had been on the Supreme Court in Washington during the whole 14th Amendment debate.

I mean, this was this was not new to him.

This was he was right on the Supreme Court.

He'd been appointed by Abraham Lincoln.

Yeah.

As a as a way to appease northern Democrats.

That's how field got on the court.

But he was right in Washington when the debate on the 14th amendment occurred.

So he knew that it was an uphill battle for Pomeroy, and he wanted someone with Pomeroy's knowledge, skill and heft to be on the other side so he could be assured that the arguments were well laid out.

I think Pomeroy he was a states rights Democrat himself.

He was not a big fan of reconstruction and the Reconstruction Amendments.

So Pomeroy was the perfect guy to bring into this fight.

And did field set him up?

I think field said, give it your best shot.

I want to hear the best argument against birthright citizenship.

He heard it and he still rejected it.

>> I mean, in a way, I admire that.

Yeah.

Let's hear the best shot we can get here.

I'm not going to set it up for whatever my bias is.

I want to hear it right.

And when he heard it, in the end, he said, birthright citizenship stays.

>> Right because he looked at the text of the amendment and he looked at the history in the debate in the Congress.

And he concluded there was no other conclusion than if you're born here, you're a citizen here.

And and it's interesting the case he relied on from New York Evan goes into a huge detail about all the other countries and how they handled their common law tradition of citizenship.

But the other thing that's fascinating about all this, Evan, it comes up at a time in American history when the issue of citizenship is foremost in the post-Civil War period.

There's a little case I mentioned to Lucretia earlier that nobody knows anything about.

It's called minor against happenstance, and it's a case in which a group of women in Missouri said, we're people.

We're entitled to vote.

And the Supreme Court of the United States said, oh, you're a person.

You just don't have personhood under the Constitution.

And therefore you cannot vote, which is what caused, of course, the 19th amendment to be passed, giving women the right to vote.

But this whole issue of citizenship after the Civil War, for a period of 50 years, it was the hot issue in America, who's a citizen and most importantly, who gets the right to vote.

That was the key factor.

>> So Toni Jaeger-Fine, when the Supreme Court in April looks at birthright citizenship, will there be echoes of of Pomeroy and this case in the 1800s?

There?

>> Absolutely.

Evan, first of all, thanks for having me.

It's an honor to be here.

Sorry I can't be in person.

the case that Judge Dollinger mentioned, Wong Kim Ark is really under attack in this case.

And the case that will be argued in, I believe, April 1st.

but certainly sometime this spring.

The question is really whether it should be overruled.

It's been in effect, I think it was issued in 1898. and I think there's lots of different ways the court can go.

it can affirm Wong Kim Ark.

on the other hand, it can bring in a more originalist argument which this court is prone to do.

I don't I've kind of given up on trying to guess what this court will do.

But they have really been first, very deferential to executive power.

certainly under the second and also the first Trump administration and certainly very sympathetic to originalist views.

And they might say, look, this was intended, as Judge Dollinger said, to ensure citizenhood of black people, people who had recently been freed from slavery.

And that is the sense in which this language was was created.

another thing it could do is what I think it probably should do, which is rest on statutory grounds.

There is a statute, it's title eight of the United States Code, and it says anyone born in the United States and subject to its jurisdiction is a U.S.

citizen at birth.

So that's kind of a codification of the Supreme Court's understanding of that provision that you started the program with.

So to me, that's the most sensible outcome.

I'm not sure that's the outcome that we'll see.

>> And, Tony, let me just ask you, you know, for a little bit of perspective, again, I take the point.

No one can predict what what this court is going to do or even or even what the configuration of the justices might be, because there are some surprises and there have been some surprises in recent years.

But I want to ask you just briefly, when the public is watching this unfold, one thing that I hear often in the public, not in the legal profession, but just in the lay public, is sort of the functionality of birthright citizenship.

And whether the court should consider that.

And one thing that has come up a lot is this idea that, well, the Supreme Court should be taking a look at the fact that we now have what's known as a birth tourism industry.

You see this a lot in sort of conservative circles.

They're concerned that there are quote, unquote, baby brokers and maternity hotels.

They charge up to six figures to bring in trips filled with Chinese and Russian clients.

The Chinese and Russian clients come here, they give birth, their children become citizens.

And, you know, the political rights all up in arms about this and saying that is an abuse of the system.

There has to be some mechanism to stop that.

Is that a legislative fix?

If that's acknowledged as a problem, or can the court look at that and say, functionally, this is not what it was intended for, and therefore we're going to rule in a certain way?

>> Yeah, I mean, that's a great I've seen it.

I've seen it in legal education also and other forms of education where students come and they time their studies specifically to have a child in the United States.

And that is, you know, whether you consider that an abuse or just taking advantage of a situation that allows it.

I think that's something that the court should not consider.

The court is not supposed the court is supposed to draw the line on policy, right?

They're supposed to look at law and they can interpret the Constitution.

They can interpret the the legislation.

They should not be involved in policy.

Does that mean the court never is involved in policy?

It does not.

I think that it can look at that abuse or it might look at that abuse.

I'm not sure that it should, but I think it might look at that abuse and say, this could not have been the intent and therefore the Constitution or the statute suggests that it should be that, that it means something different.

I think if they involve themselves in that policy conversation at all, that is probably how they would frame it, that the abuse suggests that this is not a reasonable interpretation of either the statute or the constitutional provision.

>> In a moment, I'm going to ask Lucretia to talk about what happens if we do flip birthright citizenship on its head.

I know Judge Dellinger wanted to jump in on that last point.

>> I just in doing some research for this.

Evan, I looked at the congressional debate over the 14th amendment.

Here's a quote from the debate.

A senator who is opposed to the 14th amendment voted against the amendment in the in the congressional debate, said to one of the sponsors, I will ask whether this act will not have the effect of naturalizing the children of Chinese and born in this country.

Does this law say that if you're a Gypsy or Chinese and your child is born in this country, does this say that you're a citizen?

The sponsor said, undoubtedly.

>> It does.

>> It does.

And in subsequent debate, the same, senator said, is the Chinese child of a Chinese immigrant, a citizen and one of the sponsors said, we have declared that by law is now proposed to incorporate the same provision in the fundamental instrument of the nation.

An amendment to the Constitution.

That's what it says.

That's why.

And doctor finds point, I think is, is is a critical one, which is are they going to jump into the policy and say there's another factor, there's this, you know, birth industry.

>> That's another reason to relook at this, because otherwise do you think this is asked and answered?

>> Oh, I absolutely believe it is.

I, I don't know how you get around a constitutional amendment.

One of the things I just ask you to Dr.

Yeager.

Fine.

And I thought we talked about this beforehand before we turn it over to Lucretia, is how is it that a an executive order somehow supersedes or reinterprets a constitutional amendment?

I know Dr.

Fine has talked about this, and she can explain that, but I don't I don't quite get it.

I mean, this is this is remember, this is an amendment that was approved by three quarters of the states.

This is it's a sacrosanct, in my opinion, as the original Constitution.

This is not something that you flip based on changed circumstances.

Unless you're willing to go through the process of amending the Constitution.

Again, we've done that.

We did it with prohibition.

We could do it now.

>> Well, and one other point for Dr.

Yeager.

Fine.

Maybe to kind of touch on, you know, you talked about this court and I say this court really the last decade of the court has been very deferential to power, not just with the immunity case, but in a number of different cases.

And, again, for the lay public looking at this, it is hard to understand how an executive order all of a sudden carries the weight to go this far, unless it is happening within the framework of a court that seems to say, all right, this Congress is sort of neutered itself, and we're good with that.

I mean, we're we're almost a, you know, a unitary executive mindset.

And you want a executive order this thing away.

Let's take it up here.

I'm not trying to be flippant, Dr.

Yeager.

I mean, it's just it's a strange times.

>> Yeah.

Thank you for that, Evan.

And I think there's a very good reason why you and and Judge Dollinger are both confused about this ability to do something through executive order.

There is no ability to do something like this through executive order.

The president cannot nullify a constitutional provision.

The president cannot nullify a statute by executive fiat.

What he can do through executive order is is fairly robust.

But it doesn't it doesn't go that far.

And so I think what President Trump had in mind was pushing this question was bringing doing something that he knew would not be consistent with the law that he would cannot negate a constitutional or statutory provision.

He did this to force the issue.

He did this to have challenges so that he could bring this issue to the to the courts and ultimately to the Supreme Court, which, as you mentioned earlier, will happen in this current term.

So he certainly cannot do this by presidential fiat.

I think what he was doing is, is, is planning exactly what happened, which is bring forward cause for a court case to test the language of the 14th amendment to test the statutory provision that I mentioned earlier, and hopefully, in his view, to get a different result from the one Ark case.

>> And so let me turn to Lucrecia Knapp.

And by the way, if listeners, if you, like me, are new to the Rochester connection to all this, I wonder, Judge Dellinger, is there a publicly available version of your piece that we're going to be able to share in our show notes?

>> There's a piece in the Daily Record, which is an abbreviated article, and then there's a much later article which is going to be published in the Historical Journal of the New York courts.

That's coming up.

>> We'll put what we can in our show notes, because I think listeners may may want to learn a little bit more about Pomeroy and the Rochester connection here.

But Lucrecia Knapp you've been we're to talk in a moment about what happens if the administration wins, but you've been hearing sort of how this is all framed up here.

What stands out to you?

>> Well, I mean, I just want to touch on a little bit about the executive order and, and what President Trump is trying to do.

just to follow on that theme.

And I was talking about this with Rick earlier, that it seems like he's just throwing darts at a dartboard to see what sticks.

They put forward their constitutional theory in these executive orders, and that's what this executive order certainly is.

There is a theory here.

They're saying there are a group of people that are not subject to the jurisdiction, and they want to see if it sticks.

And so they do this over and over again, especially in immigration law.

And sometimes pieces of it stick.

They don't get the whole thing.

They don't get the whole scope of the executive order.

It gets pulled back by the courts, but they get a little win.

And so we see this quite a bit with the Trump administration, especially on the immigration side.

>> I want to listen to a little piece of sound we have with President Trump.

This this was in the first week of his new presidency, when he was just kind of wrapping with reporters about birthright citizenship right before the executive order, kind of tipping his hand here.

And, you know, you'll hear some of the reporter questions, but at the end, really listen to his disposition is obvious about birthright citizenship.

Let's listen.

>> It might be a first step.

This next order relates to the definition of birthright citizenship.

Under the 14th amendment of the United States.

>> Birthright.

That's a big one.

>> What about that one in the court?

That one is like.

>> Could be.

Do you think we have good grounds?

But you could be, right.

I mean, you'll find out.

It's ridiculous.

We're the only country in the world that does this with birthright.

As you know.

And it's just absolutely ridiculous.

But, you know, we'll see.

We think we have very good grounds.

>> I am not an immigration attorney.

Lucrecia Knapp is.

And you're an immigration attorney in this country.

I've tried to figure out.

Is he right?

Are we the only ones with birthright?

best I can tell, the answer is no.

There's, like, three dozen countries that have different versions of birthright citizenship.

Is that right?

>> That is correct.

Yeah.

Yeah.

We're not the only ones.

>> Does that matter?

I mean, to you does that.

>> To me.

That doesn't matter.

It doesn't matter to me.

We're looking at our country's laws.

Yeah.

I mean, I think we're looking at our constitution and our immigration laws and.

Yeah, so to me, it doesn't matter.

>> What about you, Tony?

When you hear the president saying and you know, by the way, we're the only ones in the world with this, and you're going like.

I don't think so, but does that is that relevant to you?

>> If it's relevant to me in certain respects, which is that he tends to spout theories that that are not true.

And what it reminds me of is American exceptionalism.

And I think American exceptionalism goes both ways.

Sometimes we do things that the rest of the world is not doing that conservatives like the president really embrace, like the death penalty.

And sometimes we do things that are maybe a little bit more unique.

And obviously, as Lucretia said, no, it's not unique that we're doing that.

We have birthright citizenship.

It is not common, but it is present in a number of other states.

you have to deal with it.

It is what it is.

But I think it just shows another side to American exceptionalism.

>> So wait till you hear what happens if the administration wins.

That's called a tease in the broadcasting business.

And Lucretia's going to talk about that in a moment.

I do need to grab a phone call from Tom in Rochester who'd been waiting to jump in.

Hey, Tom, go ahead.

>> Kevin.

two things.

One is we haven't heard the term stare decisis yet, and I would love to have the professor and Judge Dollinger talk about that in terms of this current court.

obviously they chose to, to reject the law.

in Roe versus Wade in favor of a reversal of that.

So it's not unprecedented, but how much weight will the court should the court give to the, the the decisions 100 years ago that have stood the test of time?

Second question is, I think what Lucretia is going to get to, and that is what is going to happen to these human beings who have been citizens their whole lives.

and if the rug is pulled out from under them by declaring them no longer citizens.

>> Tom.

Thank you.

Tony, you want to start there?

>> Yes, please.

And thanks for calling me Tony.

I prefer it and I'm actually.

>> Not trying to take away any of your many legal credentials.

Dr.

Yeager.

>> No, no.

>> No, I can call you counselor.

I could call you all kinds of things.

>> No, please.

I prefer Tony, and I've been called much worse, so thank you.

Tom, I'm really glad that you asked the question about stare decisis.

And for any listeners that don't know what that is, because it is a legal term, it's a it's a common law tradition that we have in this country and certain other countries that says courts generally should follow principles of law announced in earlier decided opinions.

And it's a very, very strong precedent.

It's a principle and it's very, very much it's gold within our system of rule of law.

It's really a very important system element of the system of rule of law that we have in the United States as, as Tom mentioned in his call this particular court and I refer to this court, maybe the court of the last 5 or 10 years, as Evan said earlier.

it's not that they disregard stare decisis and pretend it doesn't exist, but they have demonstrated a willingness and even an excitement about overturning what we thought were pretty well settled decisions.

And as Tom mentioned, perhaps the most important one of all is, is Roe versus Wade, which was overturned by Dobbs, and that, as many viewers will know, is the decision that originally gave women the right to choose an abortion under certain circumstances, broad circumstances.

And Dobbs took that away and said, the Constitution doesn't say anything about liberty interests in, in an abortion.

so this court has shown a willingness in that case, Dobbs and in other cases, for example, the overturning of Chevron.

Chevron is a doctrine that you know, normal people don't know about.

It's not important to normal people in their daily lives.

But it's a very, very important principle of administrative law, which the court a year or two also said is no more.

And so I like to think, because I do think stare decisis is incredibly important in our system of law.

I like to think that the court will at least consider and apply some standard of principled standard to, to considering whether we should overrule a decision that's more than 100 years old.

and there are some frameworks that the court has developed for how those decisions, how it should consider whether to overrule precedent.

But at the end of the day, I don't think the fact that I don't think stare decisis by itself will be enough to make the court just say we have to stand by our precedent.

But I'd love to hear if Judge Dollinger agrees or disagrees.

>> Let me let me just jump in for one second.

>> Yeah.

Go ahead Rick.

>> In Roe against Wade and in the Chevron case in both of those instances there was no specific language in the Constitution that created a right to choose abortion or created the deference that courts are to accord to federal agencies.

There's no reference to either one of those two principles in the text of the Constitution or in any amendment.

This case is different because there is a specific direction.

At the start of the 14th amendment in the citizenship clause that says if you're subject to the jurisdiction and you're born in the United States, you're a citizen.

The, the, the point that Toni makes is this court has been willing to look at these sort of extensions of constitutional principles in Roe against Wade and in Chevron and overturn them.

This is a different deal, and I'd love to have Lucretia tell you why and what it's going to do to this, to people all over this country.

It's going to be astounding what happens.

>> We've got to fit in a break.

I will say this, Rick, if you look at Chevron deference, if you look at the Dobbs case and again, you're part of the lay public, it would easy to be cynical about stare decisis or the notion that precedent matters.

And it would be easy to say, well, look, Chevron deference, look at the Dobbs case.

Precedent matters when it matches your ideology.

When you're on the court, however, it's the it's the field story.

It's the judge field story that reminds you that that's not always the case.

>> Correct.

>> The judge field story shows you that this was not someone who was, you know, some sort of, you know, racial pluralist, you know, sort of a progressive thinker in that regard.

But he went against what might have been his own biases based on, I think, partially stare decisis.

So it doesn't always have to go that way.

It's just it seems to open the door more to ideology, but.

>> It does.

But specific language should always, to use a term that perhaps I don't mean to offend anybody.

It specific language in the Constitution trumps an executive order.

>> That verb is.

Anyway on the other side of this break, Lucrecia Knapp is going to tell us what happens now if the Trump administration wins.

And if you're just joining us, we're talking about birthright citizenship, an issue that really has been settled law for not only decades, well over a century.

The better part of 150 plus 60 years.

And now the Trump administration is seeking to overturn it.

April 1st, the Supreme Court will take it up.

So what happens if the administration wins?

Let's talk about that.

On the other side of our only break of the hour.

>> Coming up in our second hour, a conversation about the object of great cultural upheaval, the most important issue of our time.

Bad Bunny at the Super Bowl.

Did you love it?

Did you hate it?

Did you complain that you couldn't understand it?

We're going to talk to members of the Puerto Rican community and the lens that they saw.

The Super Bowl halftime show might be different than yours.

We're going to talk about it coming up.

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>> Sex has a senior can be exhilarating and can lead to health benefits.

We talked through the challenges and the joys of sex after 60.

Next time on one A.

>>, this is Connections.

I'm Evan Dawson Lucrecia Knapp is an immigration attorney with Mancuso Brightman, and if the Trump administration wins and we see birthright citizenship gone it's I'm imagine it's going to be complicated.

And what what that means immediately and then what that means going forward are different things.

Take us through what you think we ought to be thinking about.

>> Okay.

>> If this actually happens, because this could happen.

>> This could happen.

And so the first thing that I thought about is an immigration attorney is, well, how are we going to document all this?

Right.

So first let's talk about what the executive order said.

The executive order is much broader than what I think President Trump initially said about birthright citizenship.

He said something along the lines of you know, it's it's ridiculous that we give undocumented people citizenship.

Right.

But the executive order doesn't just cover undocumented people.

The executive order essentially says that you need to have at least one U.S.

citizen or lawful permanent resident parent.

For those of you who don't know, lawful permanent resident is a green card holder, so at least one parent has to be a U.S.

citizen or a lawful permanent resident in order for the child born in the U.S.

to obtain citizenship.

>> That would be the new rule.

>> That's the new rule.

That's what the executive order says.

If they win, if.

>> It holds up, yeah, yeah.

>> If it holds up.

Right.

So now, practically speaking, how are we going to prove this.

Right.

So think about just myself when I went to Highland Hospital to give birth to my daughter.

Right.

when she was born, I got a birth certificate.

Right now, that birth certificate is proof of her U.S.

citizenship.

That's what I use to obtain her social Security card.

It's what I use to get her U.S.

passport.

But if this is past, her birth certificate is worth nothing.

Because I have not proven that I am a U.S.

citizen, or that my husband is a U.S.

citizen.

So there has to be.

If this passes, there has to be some mechanism now and I don't know who's going to administer it.

The government has certainly not laid out a plan for this.

Who is going to check the citizenship or the status of the parents?

Is it going to be the states?

Is there going to be a new U.S.

federal bureau that's going to be administering this?

How many people are we going to hire?

What type of documentation are you going to require?

>> Or could they give that role to Ice?

>> Could they give that role to Ice?

Exactly.

Which is an ever growing organization.

Right.

So that and by the way, I know a lot of people are thinking about this in terms of people who don't have documents who are undocumented or people who are here temporarily in the United States that this would impact.

But this will impact every single person in the United States, even if they're they can trace their lineage to the Mayflower, because every birth is going to be subject to the same standard.

>> And so what are people going to do?

Are people going to be advised to carry papers with them everywhere they go?

>> Well, that's what we don't know.

And that's what's so scary about this, is that this can go through and there doesn't appear to be a plan to verify citizenship for people.

And so how and I think the, the scariest thing for people here in the U.S.

is that not everyone carries or has documentation of their citizenship.

so, for example, the Brennan Center for justice did a poll about two years ago and it was relating to the Save act and having to show documentation of citizenship when you vote.

And so they pulled all these people and they found that in this poll, 9% of people have no documentation to show their citizenship.

They don't have a copy of their birth certificate, they don't have a passport.

And it disproportionately affects minorities and people of color.

And so there's a huge percentage of the population that even if their parents qualify to pass citizenship on to their children, they don't have documentation of it.

>> So.

>> Evan, just for the record, 9% of the United States population, that's 30 million.

Just so we know, the size of the the issue, 30 million.

>> And so, as you know, there's expenses that come at the cost of of getting all this documentation, right.

Sure.

the other thing I already I also was thinking about as I was going through this because this comes up in immigration sometimes too.

so to show to pass citizenship on to a child, either the mother has to be a U.S.

citizen or permanent resident or the father.

What if the father is the person with the citizenship?

They're not in the picture anymore.

How are you going to get that document?

>> So a single mother?

>> Yep.

>> Who no longer is in relationship with the father, the biological father.

>> Are we going.

>> To.

That's going to court.

It looks like.

>> Yeah.

Are we going to require paternity tests?

These are questions that I think need to be answered.

and you know, I think are going to complicate everyone's lives.

>> Judge Dollinger, you seem, I would say, almost horrified by this, this idea that this could happen.

There are there's some percentage of Americans, I don't think a majority, but there's some percentage of Americans who probably voted for this administration who are hearing Lucretia and they say, Good, get your papers.

That's who we should be.

We should be buttoned up on immigration and who we are as a country.

What do you think?

>> I think that's going back to 1790, when we passed the first citizenship law in the United States and said, you know who we the people, are?

It's white guys that look like me.

I would simply point this out.

My wife was an immigrant from Canada when my three children were born.

In order for them to establish citizenship, they presumably would have to get my certification, certification of citizenship.

I have only one thing that shows that I was a citizen of the United States in 1979, 1981, and 1984 when my three children were born.

I have only one thing that shows that it's a birth certificate issued by the Monroe County county clerk's office that shows that I was born in Rochester in 1951. my father's deceased.

I can't go back and figure it out.

I described this to a kreesha during our prep.

I honestly believe, Evan, that my great great grandfather, he immigrated through Montreal.

He walked across the border into upstate New York.

I don't believe I have any evidence that he was ever William Francis Dollinger or his father were ever naturalized as a citizen.

He was born here, but I have no way of tracing my lineage back to someone who was naturalized as a citizen.

>> So this is part of what Lucretia is saying is all of a sudden, the maze of trying to track this.

So a couple other follow ups about what happened again, what we're talking about with Lucrecia Knapp was an immigration attorney is what happens if the Trump administration wins their case on birthright citizenship this spring before the U.S.

Supreme Court, I presume that this will you're going to be grandfathered in.

And this rule going forward will be for all future births.

>> Not yes.

It's not retroactive as far as we know from the language.

Yeah.

>> So it's going forward.

And then in that future American society where there is no birthright citizenship for people born, I guess after whatever date in 2026 or whatever it is.

what's the level of violation or offense?

How quickly are they moving to detain or deport?

I mean, what happens in those circumstances?

>> Well, so after the executive order was issued, there was a guidance memo that the Department of Homeland Security put out it.

It wasn't a long document.

It was about three pages.

But they did say, for they didn't they didn't address every issue.

So this issue in particular was definitely not addressed.

What happens if you don't have documentation for the parents but they are a citizen?

How long are you going to wait?

But where they did address it is this is going to be also a very real problem for people who are here in temporary statuses.

So workers who are here in H-1b status and both spouses are on that temporary status, H-1b and H-4, which is the dependent status, the status, the oh, these are all work visas that are temporary in nature and are covered by this executive order.

Those people who are temporarily will not pass citizenship on to their children.

And the Department of Homeland Security said, look, we're not going to deport your child because the effect of this is when they're born here.

To parents like that, they have no status.

That child doesn't automatically obtain the dependent child status of the parent.

So they said, we're going to give you some time to figure that out.

They don't clarify how that's going to be done.

But so they're saying we're not going to deport these children right away in that particular circumstance.

>> But okay.

But Evan, I want to make one thing clear.

This is part of the problem.

We talked about this earlier.

You're going to have children who are born in the United States under the current law, who are United States citizens.

Their parents are not.

We're going to deport their parents.

We have no right to deport the child.

What oftentimes happens is the parents take the child with them.

But that's a United States citizen.

That five year old kid.

And the other thing, just to address this secretion, because you talked about it, talk about the statelessness.

>> Oh yeah.

>> So this is another consequence.

>> Yeah.

And I think that this is not going to be as common.

This is, you know, most people are going to be able to pass on another citizenship to their child, but there will be situations where the parents are unable, for whatever reason, from because of the country they're from, or maybe the country they're from no longer exists.

There is no government, whatever it is, and they don't pass on their citizenship to that child.

And now that child is stateless.

They don't have U.S.

citizenship and they don't have the citizenship of their parent.

And I don't know enough about that area of law to figure out what do we do with the child like that?

>> Well, I mean, presumably that happens in in European countries that don't have birthright citizenship, right?

What happens there?

>> You know, I don't know I don't know what happens in those countries.

Yeah.

>> Well, okay.

So before I get to some emails from listeners on this subject, let me just bring the counselor back in.

Toni Jaeger-Fine senior counselor at Fordham Law School and principal of Jaeger-Fine Consulting here.

You know, you heard Lucrecia describe the consequences.

what stands out to you about what could be in the offing here?

>> You know, I learned a lot from what Lucrecia said, and I have to admit that it's not an issue that I've thought about too much.

What I think about more given my work is damage to stare decisis, which your caller mentioned earlier.

and I want to get back, actually, to something Judge Dollinger said earlier.

And he's absolutely right that the cases I mentioned in which the Supreme Court has rejected stare decisis is overruled.

Long standing precedent did not have constitutional counterparts, textual counterparts.

But in this case, I think there is.

And I think what the Trump administration is banking on is in part, an overruling of the earlier cases, but also a differing interpretation through a different interpretation of what it means to be subject to the jurisdiction of the U.S.

And I think the Trump administration would view that language as not meaning birthright citizenship, but only under certain circumstances.

So I think that's a that's a subtle.

But I think it's an important difference.

And I definitely plan to spend more time thinking about what Lucretia said because this, you know, I was just thinking, I prove my citizenship because I have a passport.

I got my passport because I have a birth, a birth record.

But that's it, right?

I don't have information about my parents citizenship, so on and so forth.

So I think this is just an endless list of a real slippery slope of, of ramifications that could result from, from a Trump victory.

And by the way, I do think that this is something that the court should consider when they if they decide whether to overturn precedent.

>> All right.

Some emails here Charles emails to say the Trump administration is seeking to overturn birthright citizenship.

Good I would hope we would all agree that one shouldn't become an American citizen simply because their mother was on the right side of a line on a map.

When month nine rolled around.

Citizenship should be earned through service to the nation.

That is from Charles Judge Richard Dollinger you.

You brought the Pomeroy story to me.

What do you make of Charles's point there?

>> It's not the Constitution of the United States.

It's specifically says if you're born in the United States, you're a citizen.

>> He's talking about what should be.

>> Well, I get the should be.

And there's no question that in the post-Civil War period, the Congress of the United States and three quarters of the states decided what should be the law.

If you want to change that rule, get a constitutional amendment to change it.

That's how we do it.

You don't like it, change it.

But we don't.

We're not in a country where we willy nilly change everything because someone doesn't like it.

There are things I don't like, but it's the law and we follow it.

Period.

>> Okay.

Charles.

Thank you.

Marcia.

Marcia writes to say this.

The last time Trump was campaigning for president, he said about international college students, if you go to school here, you should be able to stay here.

If an international student marries another international student, it could take 7 to 10 years to become naturalized citizens.

In the meantime, they have employment, they pay taxes, they buy a house, they have children, the children go to school.

Are those children going to have to go through the process to become citizens?

That's from Marcia.

Lucretia, what would you say to Marcia?

>> Well, I think based on the executive order, it would depend on when they have the children.

And I think that's the key.

The executive order says that one of the parents has to be a U.S.

citizen or lawful permanent resident at the time of the child's birth.

And so if those international students have that child before they obtain permanent residence or citizenship, then that child will also have to go through the naturalization process, just like their parents.

>> Okay.

>> Yeah.

>> Marcia.

Thank you.

Patrick writes in to say none of this applies to rich people.

you know, that's a good rule of thumb on many things, Patrick, but I'm not positive here.

But he says birthright citizenship not only makes sense, but if you're looking to build or grow a country that's less than 300 years old, seems like a good way to do it.

And look where we are.

We were the number one superpower.

I'd love an explanation of the abandonment of the idea of immigration.

you know, again, that's that's not a legal argument, but I understand the sort of the sentiment from from Patrick.

Thank you for that.

And then another email is just asking just says where where do we go here?

I believe birthright citizenship is a must, and I support that law.

I don't like the way it is abused.

Is there a way to get both here?

And I think what this emailer is saying is what we referred to earlier, this sort of this, this cottage industry, especially Russian and, and Chinese clients coming to the United States, paying big money, having a child here, then having a child who's an American citizen.

I don't know how often this happens.

I know this is frequently raised and Toni Jaeger-Fine.

This emailer is saying, this is someone who's listening to the show saying birthright citizenship should be protected.

Can we legislate the other stuff out?

Is there a way to get this to improve the system without abandoning birthright citizenship?

what do you think, Tony?

>> yeah, I'm not sure.

I kind of want to kick it to Lucretia.

my my thinking is, could the could the president issue an executive order to say people who are obviously pregnant should not be admitted into this country unless they have a particular waiver.

Lucretia, can you help me with this?

>> I can actually, and so there there are actually there's guidance that the Department of State has on people coming to the United States when you're pregnant.

And actually you are able to come to the United States if you are seeking medical attention for pregnancy.

And so but that guidance can be changed.

Right.

And so that is something there are ways to deal with this without throwing out all of birthright citizenship.

this can be done through regulation, through guidance to basically stop people at the border or when they're obtaining their visa to begin with, to come to the United States, because Chinese and Russian citizens first require a visitor visa, which they have to do at a U.S.

embassy or consulate abroad, and that has to be approved before they can even come to the United States.

So that could be a way to stop that from, from from happening.

>> In other words, to the emailer, the answer is yes.

There should be different ways of addressing abuses or perceived problems without abandoning the entire concept of birthright citizenship.

Yes.

Okay.

But that's not what's in front of the court right now.

What's in front of the court is birthright citizenship.

sort of.

Keep it, leave it, modify it, you know, and we're going to find out starting in the spring.

And I hope Lucretia, you'll come back, especially if there are big changes coming in the law.

Yeah, because your explanation, your distillation of the law is vital to the public understanding on this.

You are very, very good at this, and we need more people to help because this is very confusing for the public.

>> It is.

Yeah, it's confusing for us, for immigration lawyers.

>> well, I do appreciate it.

So thank you for coming in and sharing your expertise.

>> You're very welcome.

>> Let's talk again later this year.

My thanks to Toni Jaeger-Fine senior counselor at Fordham Law School and principal of Jaeger-Fine Consulting.

Tony, thank you for making the time for the program, and we appreciate your expertise as well.

Here.

>> My pleasure.

Evan, thanks so much for the invitation.

It was fun.

>> And thanks to Rick Judge Richard Dollinger retired from the New York State Court of Claims, retired from the New York State Senate.

Still writing.

Got your hand up.

Go ahead, judge.

>> Give me your tired, your poor, your humble.

The rest of the wretched refuse of your teeming shore.

I lift my golden lamp beside the door.

Emma Lazarus is at the bottom of the Statue of Liberty.

For some reason, we don't seem to want to read that and abide by it.

Our Constitution is consistent with that.

We shouldn't change it.

>> Thanks for being here, judge.

More Connections coming up in just a moment.

>> Sorry.

>> That's okay.

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