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Much is at Stake for our Democracy in the Next Election

November 23, 2015
By Larry Cary

Larry Cary

Once again, mass terrorist violence is pushing our politics sharply to the right and the totalitarian.  In the wake of Paris, we now see elected officials like New Jersey Governor Chris Christie calling for the total exclusion and deportation of Syrian refugees – people guilty of nothing other than being Syrians seeking refuge from a devastating civil war.  Christie’s call to action was in response to New Jersey having to accept eight Syrian refugees under President Barack Obama’s resettlement effort.

Given that it takes 18 months for the federal government to vet a Syrian refugee before allowing them admission, it must be said that these eight people will not constitute a “threat” to New Jersey.  By contrast, we waive visa requirements and annually admit 20 million foreign tourists – and surely some of them must visit New Jersey – without any benefit of a serious background check.

Unfortunately, Christie’s xenophobic anti-immigrant pronouncement is not an isolated incident.  Last week the Republican House – with the support of 47 Democrats – voted to end Syrian refugee immigration unless the heads of Homeland Security, the FBI andNational Intelligence all personally certify that each refugee is not a threat.

The idea that the head of these three important agencies should spend their time personally reviewing and certifying these applications is absurd.  Doing so would leave them with little time in their day to actively direct the very important work of these agencies, which is to fight terrorism.

Not to be outdone, U.S. Senator, Tea Party favorite and Republican Presidential Candidate Ted Cruz introduced the Terrorist Refugee Infiltration Prevention Act of 2015, which immediately bars refugees from any country, such as Iraq or Syria, where terrorist groups control any part.  A refugee could be admitted, however, if five busy heads of important agencies – the Secretaries of State, Defense, and Homeland Security as well as the Directors of the FBI and National Intelligence – all certify they are not a threat.  There is one other exception to Cruz’s refugee ban – Christian refugees from these countries get to come in.  

So intense is the anti-immigrant turn to the right in our body politic that fundamental Constitutional rights are now under serious attack.  Embodied in the 14th Amendment, which was passed shortly after the Civil War to grant citizenship to recently freed slaves, the Constitution requires that: “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.”

Republican presidential candidate Ben Carson, who publicly speaks about having ancestors who were slaves, opposes the 14th Amendment’s grant of birth-right citizenship.  He has said, “I know the 14th Amendment has been brought up recently, about anchor babies—and it doesn’t make any sense to me that people could come in here, have a baby and that baby becomes an American citizen.”

Unfortunately, most of the other candidates seeking the Republican Party’s nomination are campaigning against birth-right citizenship. Ted Cruz, Donald Trump, Rand Paul, Rick Santorum, Lindsey Graham, Chris Christie, Bobby Jindal and Scott Walker are all united against birth-right citizenship.  While in Congress in 2010, John Kasich said he supported amending the Constitution to eliminate birth-right citizenship.  And Tea Party favorite Senator Marco Rubio, who is only eligible to run for President because of birth-right citizenship, now says he is “open to exploring ways of not allowing people who are coming her deliberately for that purpose to acquire citizenship.”   Neither of Rubio’s parents were citizens when he was born in Miami in 1971. 

Cruz – whose campaign website explicitly calls for overturning the 14th Amendment’s protection of birth-right citizenship, happens to also be a significant beneficiary of its protections.  Born in Canada, Cruz only recently renounced his Canadian citizenship, claiming he was unaware before last year of his dual citizenship status.  His birth certificate shows he was born in Canada to an American mother and a Cuban father.

One must be a “natural born Citizen” under the Constitution to be eligible for the presidency of the United States.  In the 2008 presidential election both Barack Obama and John McCain came under fire from right wing fringe elements as supposedly not qualifying.  Obama was born to an American mother, but in Hawaii before it became a State.  McCain was born in Panama because his American father, an Admiral, was stationed there.

The complexity of issues surrounding the circumstances of Obama, McCain, Rubio and Cruz’s births are nothing compared to what will happen if the 14th Amendment’s protection of birth-right citizenship is eliminated.  Children born in the United States, whether to citizens or non-citizens, whether documented or undocumented, may or may not be citizens.  And how are we to determine a child’s status?  Should it turn on the legal immigration status or citizenship status of the mother?  The father? Of both parents?  Would it matter if the parents were married or not?  Or do we also require that the grandparents be legal immigrants or citizens. What if some, but not all of the grandparents fail the test?

Not since the Anti-Jewish Nuremburg Laws of Nazi Germany has a country suddenly stripped a large number of its people of their right and the right of their children to be a citizen.  In so doing Nazi Germany quantified who among their population enjoyed citizenship which varied based on their status and the status of their parents and grandparents.

Two years after the Nazi party gained power in Germany through a democratic election, the Reich Citizenship Law and the Law for the Protection of German Blood and German Honor were passed at a special session of the Reichstag held in Nuremberg as part of a large Nazi Party Rally.

These laws categorized people into being German, of mixed race, or Jewish.  So called “German blooded” people – those who could prove their two parents and four grandparents were not Jewish – where considered German and therefore eligible for citizenship.  If you had only one Jewish grandparent you were also considered German blooded and eligible for citizenship.  But, if you were three quarters or more Jewish you were ineligible for citizenship.  For people whose genetic heritage fell in between, that is to say more than one eighth and less than three quarters Jewish, as time went on, a series of supplemental laws were enacted making them less and less eligible for citizenship.  Eventually they and the “three quarter or more” Jews were all put into death camps.

If you think it overly hyperbolic to put the current debate about birth-right status and mass deportation of undocumented immigrants into a context that also includes Adolph Hitler’s removal of German citizenship from Jews, consider that the Republican and former Virginia Gov. Jim Gilmore has called Trump a fascist for his ideas on immigration and the creation of a “domestic force” to round up 11 million people for deportation.  Also consider that Trump recently responded to a reporter’s question by saying that he wouldn’t rule out requiring all Muslims in the United States – evidently whether citizens or not – to register and carry special identification cards.  According to Trump:  “We’re going to have to do things that we never did before. And some people are going to be upset about it…. “[W]e’re going to have to do certain things that were frankly unthinkable a year ago.”

It’s time to start talking about what the right really wants to do.

Clearly, much is at stake in the next presidential election.

*Larry Cary practices law in New York City.   Information about his law firm, Cary Kane LLP, can be found at

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