tv Tenement Museum - Birthright Citizenship CSPAN March 21, 2019 11:35am-1:04pm EDT
senate lawmakers will take up a resolution a report on the green new deal. live coverage on c-span two. up next on c-span a discussion with historians, journalists and scholars on the history and future of birthright citizenship and immigration policy on reconstruction to today. from the tenement museum this is an hour and a half. >> good evening, everyone. welcome to the tenement museum. my name is laura lee in and manage that program here at the museum. i am excited to have you for our discussion on birthright citizenship. we are here with our partners, the scholars strategy network, which we will hear more about later. how many of you have been to the museum before, i am curious? wow, excellent. thank you for coming back and for being connected to us in this way.
we actually see these talks as an extension of the conversations we have on our tour. so what we do here is we tell the stories of immigrants, migrants and refugees. we are really site specific, some many of the stories we tell our of those families who lived on orchard street and i-97 orchard in the middle of the block. thousands of families call these buildings home it a they have lived there generations of labor law, housing law and voting laws changing, so we tell the stories of their daily lives, and how the historical context they are living in is impacting their lives. the conversations we have are really driven by our visitors and their curiosity, that comes from family connections, but also from the political context and conversations happening today. that means the conversations in our programs are ever-changing. one of the stories we tell at 97 orchard street is the story of
the believe the family. they came to new york from palermo, sicily. the father came first, just before the johnson read act, which would severely restrict immigration from eastern and southern europe. and his wife would come a few years later. and so she would come after the law would be passed. we know she was undocumented. and we know that they had two children here in new york city, josephine and johnny. when we talk about this family at the museum, our visitors often acknowledge the children's citizenship status. they will say, they were born here, that is a given. they are citizens. but now that there is this challenge to birthright citizenship, the conversation about what that means, that given, is that going to be the case in the future? so really thinking about how this stated that was set in the
reconstruction era that gave african american citizenship status, how that has evolved into an immigration issue today, that is what we are curious about. and so that is why we have invited experts here, and you all here, to be part of the conversation. we will hear from our panel, but we will also have a question and answer session, so that we can hear your questions as well. before i introduce our panel, i want to introduce our partner in the evening. heath brown is a professor at the city university of new york and a coleader of the scholars strategy network. >> thank you so much. thank you tenement museum for having us. there are two reasons why i am so excited about this event, about organizing it and attending it. the first is my role as one of the leaders, one of the code leaders, along with my colleague diana romero, who is in the back
somewhere of the scholar strategy network. we are a group of about 50 or so, mainly university-based researchers who have in interest in connecting what we do in the classroom and in our research and scholarship to a wider conversation. we do public facing events like this with institutions like the tenement museum. if you are involved in civic organization that would like to collect test connect with us, that you feel like maybe what we have to say may be helpful to what you do, or as importantly maybe we need to hear about what you do in the community with the issues that you care about, please let us know afterwards. we are excited for this kind of event and future events. the second reason why i am so excited about this event is my great, great grandfather owned a drugstore at orchard and stanton, two blocks away from here.
he owned a drugstore after he immigrated to the country. his story is not unlike the family we spoke about. he came to the country escaping persecution. came to the country with dubious paperwork, arrived in the country at a time period different from what we are in now. if he arrived today, his situation and my family's immigrant story would be greatly changed. third, my mother is here, so thank you to her for coming as well. [applause] heath: an immigrant as well. we are excited about the event and decided to hear about this. we have information in the back about our organization, if you want to pick it up when you are leaving. thank you for coming. >> ok, i will just give you some brief introductions of, our panelists, but know we will have
a q&a session. we will pass around a microphone. when it is your turn to speak, wait for the microphone. c-span is here, they are recording us and we want to make sure that evening as part of that recording. heather lee is an assistant professor of history at nyu, shanghai. her research has been featured in atlantic magazine and in a podcast on food science and history. she has curated exhibitions, including shows at the new york historical society, the national museum of american history, and the museum of the chinese in america. she is completing a book on the history of chinese restaurants in new york city. then we have mazin, who is the cofounding editor and a senior reporter at documented, a nonprofit news site that covers immigration in the new york area. he was a reporter at the
guardian u.s. in new york at the national desk, as well as at in of innovation lab. he started his career covering the crisis in beirut, lebanon for the local newspaper, the daily star. garrett epps is a professor of law at the university of baltimore. he has written five books. and that includes a narrative account of the framing and adoption of the 14th amendment. he is a former reporter for the washington post and the author of two novels. now i will turn it over to heather. [applause] heather: thank you for being here. this is -- when we plan these events, we give an estimate, maybe 20 or 30 people will show up, but so many of you came, so many more rsvp'd, it is such a delight to see every seat
filled. it is such an honor to be here with my co-panelists. i'm a historian, so like the tenement museum, the present and past comes alive in the stories we tell it both of these individuals tell stories about the past connected to the present. and they explained to us why these abstract concepts like birthright citizenship should matter to each of us in our everyday lives, not just in the moment they become threatened by executive order, which is actually how we got here. i was at an event in the fall and heath and i were talking, we were like, what is going on with this executive order about birthright citizenship, we should do something about it. so here we are today. i want to give the panelists an opportunity to share about their work and what about this topic
connects most of their work. >> thanks. thank you to the tenement museum for having me here. i am a scholar and we have a rule of thumb, when we start getting phone calls from people who want us to make speeches, the republic is in trouble. if things are going well, we cannot get arrested. [laughter] >> and certainly in this particular area, which is the area of citizenship and the constitution, the trouble is great and it has been growing year-by-year, since i have been working in this field. in the 1990's, we have seen it go in the following way, perhaps we should amend the constitution to do away with birthright citizenship. step two is, perhaps we can pass a statute to do away with
birthright citizenship. we can do congress, congress can do it. maybe a court can do it. finally in the summer of last year we arrived at this deeply disturbing idea, clearly floated out of the white house, that the president can do it by executive order. and just realizing how far we have come from a real, central anchor of our constitutional order and how little people understand about why our lot of citizenship is the way it is. so i will very quickly tell you or summarize what my book shows about that. and -- ok. is that better? ok. the founders of the 14th amendment had a problem. and the problem was more complicated than we are likely
to give it credit for today. i do not know if you remember the 2016 campaign, but senator paul -- who -- [mic feedback] garrett: he was still a candidate and he said the purpose of the 14th amendment was to make citizens out of the slaves. and therefore we do not need to apply it in any other context. that is clearly wrong, if you go back and look at the record. the central problem of course was that slavery had created a class of people in the united states who had been living here for generations, but could never attain citizenship. they were a permanent underclass with no legal rights. that clearly had to be changed, as a result of the civil war, because it had torn the country apart. but beyond that there was this
central problem, two problems. one was the rights of immigrants. one thing you are going to hear when people talk about this issue is the framers of the 14th amendment, they didn't understand about illegal immigration, they do not have the problem we have today. you go back and look at the census, the percentage of foreign-born americans at that time was as high as, maybe even greater, than today. immigration was an extraordinary phenomenon and the population of the union grew 4 million during the civil war from streams of immigration from europe, 20% of the union army was made up of foreign-born people who came to the u.s. and fought in order to get citizenship. this was very much on the minds of people when they fashioned to the citizenship clause. in fact, most of the debate that you see in the congress on the framing of the citizenship clause has to do with the status of immigrants.
and the democrats, who as an old democrat i regret to say we are on the wrong side of the issue at this point, the democrats kept saying, you do not mean to make citizens out of x. to which the sponsor said, if they are born in the united states, they are citizens, right? and the chief exhibit in this debate was about chinese people. and at that time, chinese people who emigrated, they were lawfully present, but they were never eligible to be citizens. and so the debate was, well surely chinese people's children cannot be citizens, because they themselves cannot be citizens. and the answer in the record was, no, if they are born in the united states, they are citizens. the reasoning for it was we cannot let another group of people grow up in this country that have fewer rights as a
hereditary matter. if we do it, we will have to fight the civil war all over again. and the movement now to take citizenship away from the children of the undocumented represents precisely the same impulse. one of the things that is talked about a great deal in the debate over the 14th amendment is the notion of caste. we like to think of it today as about racism or so forth, but they talked about caste, and that was a system that was hierarchical, lifelong and hereditary. you are born into a status and you could not change it. and they said this we cannot have in the united states, we cannot be a modern democracy and have a caste system. the assault on birthright citizenship, and the scotia being used to justify it, really represents an attempt to
reinstate the notion of caste, hereditary and lifelong. and in a way that would hear the country apart and destroy the democratic values that we care about them if it is allowed to progress. yeah. [laughter] [applause] >> that was incredible. i'm very happy to be here as well. i'm a cofounder and senior reporter at documented, as was mentioned. we are a small nonprofit news site dedicated to covering immigrants and the policies that affect their lives. so immigration right now is busy to say the least. no shortage of things to cover. and given we are in a moment around the world, it is also a complicated time to be a journalist. we really shape how people view individuals, issues, and
influence policy. mazin: so, did i say something wrong? [laughter] mazin: good, ok. so as far as policy is concerned, immigration might be one of the most divisive issues we are dealing with right now. and the media has been weaponize on this issue for a very long time. go back to the 1850's, a newspaper out of louisiana titled, the american patriot, which supported the know nothing party. that advocated for indian irish catholic immigration to the u.s. and the paper was in favor of sending back poppers and criminals. and so that polarization existed one of your 50 years ago and now we still have similar polarization in our media. whether it is right-wing outlets, or liberal outlets calling for more sympathetic
policies. and the 14th amendment has propped up a lot in the media over the last few decades. usually in relation to like mainly to topic areas. one is anchor babies, the idea that people are coming to the u.s. illegally to have a child that can attain a status of some kind. this is the industry of people coming to the u.s., spending a lot of money, pregnant women coming to the u.s. to effectively buy an american passport. there was the issue of terror babies, this was where terrorists were sending pregnant women to the u.s. to have children that could come back 20 or 30 years later to commit some act of violence as a u.s. citizen. not a lot of data to support the long-term strategy behind that. that was something that was discussed in the media as well.
so anchor babies is a favorite among conservatives, and it is interesting as a case in how immigration is discussed today. right-wing pundits take up the issue as a crisis, that immigrants are capitalizing on a loophole in the constitution and coming to the u.s. and taking advantage of american generosity, while some outlets are more sympathetic toward immigration. and anchor babies as a term is dehumanizing to the children, to refer to a baby in that way. but -- is more interesting because it kind of brings this theory across the board. there was a 2050 raided by federal agents, who rated hotels where the chinese women were reportedly paying tens of thousands of dollars to have their babies in the u.s. and there have been other stories about russian mothers in miami. there was a story about russian
mothers staying in the trump hotel to have babies. yeah -- [laughter] mazin: there is a lot of interest in this industry and the subculture. in new york, we know the story about a hotel in queens. and it kind of draws interest from the left and right, people from both sides find it interesting, but the coverage can be alarmist, the undertone that people are taking advantage, where if you look at the numbers it is pretty small the number of people born to birth tourists. and you have to be extremely wealthy to do this, it is tens of thousands of dollars to come and live in the u.s. for months without working. it is not really the issue of size. maybe it is over reported. so the documented, we are trying to work around the people who are most affected by these issues, we try to look at the individuals most impacted by the
system. so being at the museum and on the advice of heather, i wanted to highlight how the 14th amendment affected the people that we cover at documented. i called laura lie williams, who is with us, she is one of new york city's fiercest immigration attorneys. and she is the director of immigration for lgbtq and previously worked as an attorney for those miners house by the federal government. i asked if she had experience dealing with the 14th amendment and it she told me the story of a child, we will call that child john. john was born in connecticut to central america parents. shortly after his birth, his family returned to central america, to their home country. when things got dangerous there, he and thousands of other children made the trek to the u.s. and during this journey he lost his birth certificate that
proved he was born here. his parents did not know that since he was a u.s. citizen he could've flown to the u.s. and he would have been allowed into the country. they were not aware of that. so he ended up at the u.s. mexico border, where he was met by federal agents and put in federal custody at a shelter. that is where he met laurali. she realized he was a u.s. citizen by birth, but he did not have his birth certificate, so she spent months dealing with local agencies, trying to get a hold of his birth certificate. he had to spend months in a shelter try to get released while this was ongoing. she was successful and he was released to a sponsor, but she told me that there are other children like john who come to the u.s., either not knowing that they have birthright citizenship, or that they are citizens, or not being able to prove that they are citizens, even if they know it. and they spend months in immigration detention because of
it. [applause] heather: thank you, both. i want to hold onto a phrase you had, the generosity of the american legal system, or our policies toward immigration. i want us to think about what you just described as the claim, the -- maybe this is better? no? [laughter] heather: i am sure everybody down the street also wants to hear me. i want to think about how hard and give us a little more space for how hard immigrants have fought to keep that. i am thinking of the constitutional case that took place in 1898, and how that really connects to the story of this young man, this boy, who
had to prove his justification for being a birthright citizen. so, i guess, could you tell us a little bit more as a constitutional lawyer about this case, and how the proof of it was on the burden of immigrants? >> well, without going into a lot of detail that i will mess up, won catches the hypothesis i was talking about, where it was said during the debates, yes much out of chinese immigrants born in the u.s. will be an american citizen. and he was born in the united states, but the federal and he was born in the united states, but the federal government did not want to recognize his citizenship, so they had to go to court over
this. and there is a fairly exhaustive opinion where they sort of say, well, what class of people would not be born in the united states? what class of people who are born here would not be born here? and you can review the literature, and they say that there are a couple of things, and of course by this point we are way past the era of -- a lot of that language was put in to cover the language of india law, law, we are now way past that. so they say the only two groups that are, you know, not here, even when they are here, are diplomats, covered by diplomatic immunity. their children, this is true, their children are not citizens. they can be born at g.w.
hospital and they don't -- the diplomats don't want their children given citizenship, it is part of the diplomatic immunity agreement. the other group would be an invading army, who come in and have children while they are occupying u.s. soil. otherwise, you know, there is no racial characteristic to birthright citizenship. wong kim ark is a very important case in that regard and very much under assault. when i write about birthright citizenship, what i write about is what happened at the framing of the 14th amendment. and whenever i publish anything on this subject, which is regrettably often, because it's so much in the news, i get dozens of emails from trolls saying, you know, you don't understand wong kim ark. wong kim ark is completely wrong. and there's a whole elaborate folklore that's grown up. i mean, fake news, you know, that is about what really happened in wong kim ark.
it's pretty straightforward. but the forces -- what we call restrictionist forces, the ungenerous part of the american spirit, really senses that this case is in their way. and they are trying to find some rationale to get it reversed. and they are hoping that that will happen in front of the supreme court if they try to do something. now, i think trying to do it by executive order would doom the effort because i think even this court would say no, you can't do that. but statute or lower court decision, you know, we should not be too sanguine that it can't happen. and if it does, try to -- to game out in your mind what happens following that. what happens following that when we have four million or five million people in this country who suddenly have no state, they have no status, when every person who needs to deal with
the federal government is required to prove citizenship. this has already started in south texas, for example. the government is routinely refusing to recognize the citizenship of latino people born in south texas whose parents used mid wives, which is quite common. because they say well, we don't have hospital records. you must have been an unlawful immigrant smuggled across the border. this is covertly stripping citizenship from people born here. multiply that by a hundred and that's what you've got if wong kim ark is actually challenged. does that address what you wanted? heather: thank you very much. for me, a dimension of that was for people who don't know the history of legislation against chinese immigration but there were a set of acts called the chinese exclusion act that passed in 1882 that said that
chinese laborers would not be allowed into the country and this was made indefinite in 1905. but another dimension of this law was that chinese could not naturalize. so one of the arguments against wong kim ark is the framers did not intend the chinese who should not have been able to naturalize the right, the right to citizenship. garrett: >> right. heather: you see a similar twist today in the arguments that are being made by paul ryan, trump, that the 14th amendment, the right of -- i'm going to butcher latin because i don't read or speak -- but jus soli doesn't apply to people who are not lawfully here and i would love for you to forecast a little what it means if -- if that interpretation prevails, if people who are not lawfully here, their children do not have access to birthright
citizenship, what does that mean about wider patterns as you see on the ground? mazin: yes. it's an interesting question. i think it kind of gets at, you know, is the 14th amendment a factor for immigration? i think a lot of these things are based off the notion that people are coming to the u.s. specifically to have children. i think senator lindsey graham called it drop and leave. yeah. people were crossing the border dropping their babies and then like i don't know, leaving the country. i'm not sure. [laughter] mazin: but either way, the notion was that the 14th amendment is somehow a magnet for illegal immigration and other kinds of immigration. and there's not a ton of data to support that. i think that migration flows are typically dictated by the economy and how much work there is in the united states. you know, and when there's a recession immigration tends to dip. people are coming here usually looking for jobs. and the statistics that they often use to support that are around the number of
undocumented people that have children. and, you know, they're like 10 million or 11 million undocumented people and have been here for decades and some of them had kids. i think that the people who have lived here for 20 years, it is inevitable that they might start a family. so the idea that, you know, ending birthright citizenship is in some way going to restrict immigration in the future is unlikely. i think it's more probably born out of limiting the number of rights that people have currently living here. heather: thank you. when i was sort of -- i was researching the #birthrightcitizenship and one of the things that shocked me to see it was somebody conflate all chinese tourism to the united states with birthright tourism. and it said $25 billion industry per year. [laughter] like, wow, that
would really improve our economy if that were true. thank you very much, china. [laughter] heather: i want to talk about a lesser sort of talked about dimension of birthright citizenship, for me falls under the category of birthright citizenship and again, excuse my latin. but jus sanguinis which is the concept that the children of u.s. citizens born abroad also have the right of citizenship. it's often called derivative citizenship. and garrett, would you mind telling us about how that came to be and how that works. well, go back to the original constitution. the only reference to citizenship in the 1787 constitution has to do with the qualifications to be president of the united states. you have to be a natural born citizen. and a resident of the united states for 14 years. and that term is actually a lawyer's term of art.
it goes back to the 14th century when parliament passed a statute for -- to deal with the citizenship of her majesty's -- his majesty's subjects born beyond sea. and they said that if they are the children of his majesty's subjects, you know, there on business for england, then the children are natural born citizens. and so that's been a legislative prerogative since, you know, the 14th century. and almost immediately upon formation of the government in 1789, congress passed the first immigration act that included that language and said that for children of parents born abroad, they would be natural born citizens of the united states, which is why this is a segue, but, you know, i wanted to write
when obama was president, i wanted to write a piece saying i wish he had been born in kenya. because the truth of the matter is under the law, as it is, he would have been just as eligible to be president as he would have been if he had been in hawaii. and of course now we have -- we have ted cruz who was born abroad. but congress has the power to tweak that definition and in various ways they did for many years, for example, a woman who went abroad and married a foreign man could not transmit her citizenship to a child whereas a man who went abroad and married a foreign woman could. and there still are some of these gender disparities in our law about americans born abroad. but that's something that's almost completely under the control of congress. and haven't seen an attack on that yet.
but, you know, keep your eyes open. heather: we have a pace, we need to go from one to the other. i want to think about some present cases that are affected by the challenge to birthright citizenship. i recently learned about a group called immigration equality that's based in new york that is looking to defend the children of same sex couples. the state department has started started to refuse this citizenship -- derivative citizenship if the child does not share genetic material with a u.s. citizen. so you have a confluence of two different federal policies, right? the recognition of same sex marriages as well the concept of derivative citizenship. and i was wondering if you could sort of help us unravel what
this might mean for the implications for either same sex marriages or derivative citizenship, where could we be going with a president like this? perhaps to the supreme court. mazin: yes. that's a mess. i don't know if i can really unravel it much. i would be interested to hear your thoughts on it, too. but yeah. the lawsuit that was filed last year by immigration equality about a group of same sex couples who had had a children abroad through various different means, some i think -- one family through a surrogate and another family through a donor. and when returning to the u.s., they found out that their children children didn't have -- they weren't able to pass their citizenship to their children because they didn't have specific d.n.a. i think one case was two twins. and one twin had the d.n.a. of the u.s. citizen parent, and the other twin did not have the d.n.a. of the u.s. citizen parent.
and they gave citizenship to one and not the other which is just like common sense. a little bit ridiculous in that sense because they're both on the birth certificate and it's been recognized by the state in which they were born. but trying to read the tea leaves on where that could go legally is like i have no idea. and i would love to hear your thoughts on that. garrett: well, as far as ending up -- let me just say at the beginning, as far as ending up in front of the current supreme court, there is a quote from dickens that i use to people who say, well, let's go to the supreme court, i would say that of this court, there is not an honest practitioner in its bar who does not say to his clients, suffer any wrong that can be done you rather than come here. [laughter] garrett: it is not a promising field for civil liberties litigation. now, i will say that last term,
the case the court had on what's called a shadow docket, it was not a fully argued case, the case of an arkansas statute and under arkansas law, as in many laws, when a child is conceived by artificial insemination and born to a married couple, legally, the father, the husband of the mother, is considered to be the father and the name goes on the birth certificate. but the arkansas health department said we won't do that for same sex couples because we think this is a biological thing. that made no sense at all, right? because the father of a child born of artificial insemination is not biologically related to the child, either. that case came to the supreme court, and the court decided without hearing oral argument, they said no. what obergefell and other same
these sameaid was incidents of marriage as are afforded to opposite sex couples, there is not -- they're not -- what justice ginsberg called in oral argument there's not skim milk marriage. and if that principle is followed, then -- this would not stand up. because to the best of my knowledge, i don't know in the immigration and nationality act any discussion of d.n.a. testing, right? and so this would just be a misinterpretation of the statute. now, that being said, we have a different court. we do not have justice kennedy. and in the case i just described, justices gorsuch and thomas dissented and they said this is a perfectly reasonable distinction to be made. you know it doesn't violate , equality at all. it's just biology, right? i mean, it really -- i hate to be unfair to my enemies.
but it didn't -- [laughter] garrett: it did not make any sense to me what they were saying. but we don't know what's going to happen. this court has been so destabilized by the new appointments and the political controversy that surrounded the kavanaugh appointment that doctrine could go almost anywhere. and i would hope that these people would seek legislative accommodation as well. it may be that there is more hope for things like this in congress now than there is for the judges. mazin: yes. i would just add that adoption actually for families who adopt a child that they would get u.s. citizenship straight away which is an interesting wrinkle that the state department will recognize that and not recognize that. and they did -- it is important to know that it did have been under obama previously. immigration equality with obama,
thinking they would change the state department policy and they didn't. and now they've taken it to the courts. heather: i mean, that is such a good reminder of the way in which these laws and our policies can be very contradictory and inconsistent. and sort of twisted however the situation that fits for who's deciding. speaking of who's deciding, the elephant in the room, i want to sort of help us think about , and garrett,r you write so beautifully about andrew johnson, lincoln's vice president, a successor, when he was assassinated. you really beautifully captured his temperament and how he handled the responsibilities of reuniting the nation. what did it mean in this moment that he was our president and not lincoln? garrett: you know, i would say that andrew johnson was almost
the anti-lincoln and was or was certainly until recently the unquestioned holder of the title of sort of least stable individual to hold the presidential office. [laughter] he was -- he was, i think, in my historical diagnosis, he was an alcoholic. one of his biographers defends him against the charge by saying that on some days he didn't drink four ounces of whiskey and he was -- you know, visibly sloppy drunk when he took the vice-presidential oath and made a speech which hannibal hamlin, the departing vice president, said i wish the earth would simply swallow me up rather than have to listen -- and he was like, i don't want to say -- hey, i want to say all power comes from the people and starts
pointing at members of the cabinet and saying you, mr. stanton, you mr. seward -- who is that guy? [laughter] garrett: yeah, you mr. what's your name. and he was -- he had been military governor of tennessee , which gave him definitely an exaggerated sense of what power the president should have. because he hadn't really had to deal with legislation and so forth. he had been a military governor. and he approached being president the same way. it was well known that the way to get something out of president johnson was flattery. that if you told him he was a great president, if you told him that people loved him, if you told him that people supported him, he would do what you wanted. and he did do that. on the other hand, he had to deal with a very determined, sophisticated, intelligent republican party in congress that had been there throughout the war.
had seen war policy develop and had seen the problems developing from liberation, the passage of the 13th amendment and so forth. and his response whenever they questioned him was to call them traitors. and in a very famous speech on february -- on washington's birthday, in 1866, he said, you know, charles sumner and thaddeus stevens, they're traitors just like jefferson davis. we should hang them high, right? this is the president. and of course i'm sure -- i'm honestly quite sure he woke up in the morning and said i said what, you know? but it -- it had a tremendous impact. because he was so unpredictable. the civil rights act of 1866, which is really the foundation, the remains of it are the foundation of our civil rights system today, in terms of how it's litigated in court and so
forth, was passed as a compromise measure. and the sponsor of that act, senator trumbull, see if anything about this is familiar. went every day to the white house, mr. president, here's what we're doing, what do you think of this? oh, that's a great idea, boss. i'm going to go back and do that. and he would go back and the thing was finally passed and he said, you know, believe me, folks, the president will sign this bill. he has promised me he will sign the bill. the bill goes over to the white house and the president is like i'm not signing this god damn thing. and he vetoes it. now, this is the first time in american history that a serious substantive veto by the president had ever been overturned. it was -- it was an extraordinary rebuke. and what happens with presidents who try to be strong, because that's not what lincoln ever did. lincoln didn't try to be strong.
lincoln was constantly telling congress, as you wished, i am doing x, right? and they're like, did we wish -- i guess we did. [laughter] garrett: he was always i'm complying with your instructions. i am but your servant. and johnson on the other hand was trying to be strong. and presidents who try to be strong often end up being very weak. and by the election of 1866, when johnson went on a tour around the country, he was kind of incoherent in his speeches, you know. remarkably for a president, to make speeches that didn't make a whole lot of sense. and he probably generated what i consider still to be the worst single political headline in the history of the united states where he made a speech saying they've accused me of all kinds of things. what have i done? am i judas iscariot? this runs in "the new york
times" on the headline "johnson denies he is judas iscariot." [laughter] garrett: you don't want that headline. you lost that news cycle. so by his ineptitude and his rigidity and his anger, he is seriously compromised the ability to achieve genuine social change in the slave south. by the time congress took over reconstruction, in 1867, the opportunity to really create a unified southern society had really passed. and the rest of the battle , including the impeachment and so forth, was just an attempt to stop the worst excesses of reconstruction. johnson's impeachment, which i was taught as a boy in southern
school was an act of vindictiveness by the evil yankees, was actually a desperate attempt to get him as commander in chief of the military to allow the union troops in the south to protect african-americans from the new ku klux klan. he had ordered the troops to stay in the barracks, allow these rioters and night riders to slaughter black people who sought to exercise the right to vote and so forth. and the idea was we have to get him out of there because he's destroying any chance of a solid reconstruction in the south. we have never recovered from the damage that johnson did as president between 1865 and 1869. it's really chilling to see how much damage one person can do when he lacks the experience and the temperament and the mental stability to be in charge of a great nation. and i'll just leave at that -- [laughter]
heather: well, there are some aspects of that piece of history that i hope will repeat itself, congress standing strong, impeachment, hopefully just around the corner. i also want to think about what we do today with an executive that feels free to declare what he wants, to use his office to test all kinds of limitations and expectations of how we think the president should act. trump has recently declared by national emergency to fund the border wall. how do you think, mazin, if this exercise of executive power is being responded to by the people you cover? because, you know in many ways
, we've talked mostly about the higher ups. but maybe give us a sense on the ground of how people are affected by this. mazin: yeah. i'm still recovering from that. [laughter] mazin: that was incredible. yeah. the national emergency. that happened. yes. a lot of our work is speaking to people like lorelei on the front lines dealing with these executive orders as they come down, responding to them, they're incredibly busy. there's been a lot going on. stuff like the national emergency doesn't affect us as much in new york city but there are a number of different executive actions that have kind of ripped through a lot of immigrant communities in new york city. the one that comes to mind first is probably the travel ban. i'm sure you guys have heard about it. an executive order signed by the president a week into his presidency that banned citizens from seven mostly muslim majority countries.
it went through the courts. but, you know, it arrived to the supreme court, and the third iteration of it was upheld and it is in effect today. and yemeni new yorkers across the city are being impacted by it. a really horrible war happening in yemen right now. and there are a lot of family members of yemenis living in new -- in refugee camps in djibouti two years ago would have been able to join their father, their husband, their son, whoever it may be, that they have in new york city and now they just can't. and there's this very complicated waiver process that's very opaque and nobody understands, and it is subject to a lot of legal battles as well. so the travel ban is definitely something that we're seeing a lot of. the public charge rule, i'm not sure if you guys are familiar with that. but basically it's a rule that came down from the department of homeland security expanding what's known as public charge, which means when somebody applies for a naturalization or
a green card, they're questioned about whether or not they will become a public charge. so there's certain programs that even if you have been subscribed to could affect your application so that's been expanded. and they now want to include more programs in that programs -- in that programs like food , stamps, people in the city might rely on. and that's actually been a really hard thing for us to cover. we did a piece about how writing about public charges saying that they're considering public charge led to drops in enrollment from immigrant community. out of just fear that this is -- you know, if i keep using w.i.c. i'm not going to be able to get a green card down the line. so we're trying to grapple with like how do we responsibly cover these hectic decisions that are coming down, these leaks that are coming out in a responsible way? so that we are not fear mongering but keeping people informed at the same time. so that's definitely been really difficult. and just trump's cabinet at
large has done a lot to shift immigration policy. i think for a very long time. like based on what you've said about what can happen in the space of four years, i think jeff sessions during his time as attorney general really revolutionized the immigration courts and put in a lot of different measures, very, very specific targeted measures that probably came from people that studied this issue very closely that made it very difficult for immigration judges to do anything but deport people, have pushed back cases to the place where the backlog is going above one million cases nationally so this is a backlog of immigration cases waiting to be heard. like a million people in the country who are just in limbo waiting. yeah. just really undermining the kind of very -- the core of the courts. so there's been a lot -- and i think the fear right now, of all immigrant communities, to combat
fake misinformation about things that they can do and things they can't do and things that i.c.e. can do, things that i.c.e. can't do. and people are extremely worried at all times. so it's been a challenge for sure. heather: thank you both so much. i want to turn to the audience to ask our experts here your questions. please wait for the mic so -- >> as an emigration attorney in the room, my questions are actually for professor epps. i'm almost scared to ask this question aloud because i'm afraid it will give the government ideas, but i would like to go back to you what said the exception to birthright being an invading army. since the fall, the
administration has been using this rhetoric saying that there's an invasion at our borders. and as someone who goes to the border regularly to volunteer, it's very traumatic to hear that because it's not an invasion. it's not an army. at first i was thinking oh, this is because of the primaries. it's political, but now we also have the migration protection protocols, protection in quotes because it's not protecting anyone. i'm wondering if it is possible that the administration will use this idea of an invading army exception to limit birthright citizenship that might be coming out of the central american exodus right now? >> i hope everybody heard the question. think it is important -- and i
know you understand this because you read the cases, but it is important to understand that the rhetoric of "the invading army" has been a mainstay of immigration law since the 19th century. one of the reasons be travel ban case came out the way it did was that there is generations of immigration law president saying the power to control our borders is unlimited. it must be because otherwise, foreign countries would send immigrants and they would take over, likening immigration to an invading army. so that entire, rhetorical frame is already in place. the other problem with immigration law, as you know is thethan i, is the - extraordinary amount of discretion it gives to the executive. i always thought that when the travel ban case got to the
supreme court, the administration would win simply because the statutes or so -- the chief justice said in his statement that the statute exude authority. they give the executive so much authority. so rhetorically, yes. now whether they could seek in some way to proclaim these caravans, and so forth, to be a military situation, i don't know. it had not happened today as of the time we got here. [laughter] right? but we see ourselves moving in this direction. the entire point of the national emergency is, apparently, to move money into so-called military construction projects, which is the wall, which until 90 days ago really didn't seem like a military construction
project. and this is essential to support our military mission on the border. so the ongoing militarization of the southern border and the immigration on the southern border, the fact of the matter is, a lot of what the trump administration is doing in a lot of areas is really lame brained. it is blowing up in their face. and a lot of areas, trump is a lot like wile e. coyote, he sets up a roadblock and it blows up when the roadrunner comes by the area. but that's not true when it comes to immigration. what can we do? and he recently made the statement, i would be happy if
there was never another immigrant to the united states. so i think they are moving forward on this in a lot of ways and doing it very effectually. i don't know how, legally, you could use that, but i certainly expect to see that analogy. and the problem is, it gets deference from the courts also. when you say military, when you say national security, the courts are very reluctant. it can happen. it happened to bush in the guantanamo cases, but courts are very reluctant to substitute their judgment for his. i doubt that miller is listening to this c-span program. [laughter] but i'm glad. >> we have a new attorney general who may or may not approach things in the way our old attorney general does.
what does that change of senior leadership in the department of justice mean for some of these issues? will there be likely changes in the way the laws are interpreted in the way the justice department pursued this mandate, or will there be changes in the -- changes? >> they have done some backgrounders on all the potential ag's, and not many people's views on emigration match jeff sessions' views on emigration. it was an important issue for him for a long time. his recent book in comments on that showed the depth of importance to him. i don't think he will be as proactive as he was, but the damage is pretty much done as far as immigration courts are concerned. even if the status quo remains, it doesn't appear the ag will pull back any of the things sessions did.
he could write decisions to overturn sessions', but that doesn't appear to be the case. so things like quotas, immigration judges now have quotas that they have to meet over a certain period of time. i think that is going to stay in place. and tools that were available to immigration judges to speed up cases or provide relief in an easier way have been removed. as far as the immigration courts are concerned, i think you will see more of the same. >> i will just add that barr and sessions are quite different animals. barr was a part of previous republican administrations that had relatively generous views on emigration. he is not someone for whom xenophobia has been an animating characteristic. on the other hand, he is coming
into -- he works for the president and he is going to have a lot on his plate, a lot of things going on. will it be a high priority of his to soften immigration policy? my guess is, not in and of itself. on the other hand, if i were someone running and immigrants rights lobby group, -- running an immigrants rights lobbying group, i would not assume you are going to be received at the justice department the same as you would have been if sessions was still there. barr is a very conservative guy. he is not the person i would have chosen to be the attorney general, but he is not sessions. sessions was a person who, at the time he was named, was not credible to be an attorney general. barr knows the justice department, he knows how these policies work. if advocacy and pressure could be brought to bear on him from
the hill, it might, at the margins, produce positive results. jeff sessions was the enemy. let's not kid ourselves. i don't think barr should be viewed the same way. we see what he does. >> does that make sense? -- does that make sense? >> definitely. >> my understanding is that our law provides for refugees to apply for asylum, and that includes with respect and dignity. you just mentioned softening the system. i wonder, is there some legislation we could propose that would just honor the law, carry out the lawl if the law says yes, with dignity and respect?
professor epps: the asylum case is a really interesting one. that is still pending. that is one of the few areas in my experience with the immigration and nationality act, where the act is first of all clear, and secondly relatively , humane. the statute says an immigrant, in the united states, shall be allowed to apply for silo and whether or not he or she is found at a port of entry. you are always amazed when congress writes a sentence that is clear. [laughter] but there it is. so the administration issued a regulation saying, pursuant to the statute, we will not allow them to apply for asylum status if they are not at a port of entry. this goes to court, the judge enjoins the policy, and says it
completely contradicts the statute. it is not a constitutional issue. congress said to do it this way and you are not doing it. that is great, but notice what happens next. it goes to the supreme court, the administration rushes to the supreme court and says, please let us put the policy into effect while they case is pending. and the court says, as it should -- let me back up and say, it goes to the ninth circuit first and the ninth circuit rights and opinion two to one, but the majority says no, you can't do this, look what the statute says, what is the matter with you? are you stupid? and the author of that opinion was judge jay bybee, the author of the torture memos under the bush administration in the early days after 9/11, basically saying unless you are causing organ failure, you can do all these things to detainees. this is not what i would call
the aclu poster guy. [laughter] and he writes this opinion saying, what? are you stupid? get out of here. but it goes to the supreme court, and the administration asks, please stay this so we can put the policy in place while you consider it. and the court says, as it rightly should have, no, you lost below. the injunction is in place. but the vote was 5-4. four justices were convinced by this argument that the statute literally didn't mean what it said, or that the administration can change it. so i think we have a problem. the idea of getting ameliorative legislation through this say its, i don't shouldn't be proposed, i think it should be. i think hearings and advocacy would be good.
that mcconnell would let it through the senate strikes me as -- as unlikely, but there is a lot of education that needs to be done before because we are moving in the other direction, -- direction. we are moving toward lawlessness as far as asylum goes. and what most americans don't realize is that we not only have obligations under our own statutes, but asylum as a matter of international rights law. we are bound by all these things which we are completely ignoring. so we have to fight to stay where we are. and, certainly, anything that you think of that could be advocated, it is all for the good. to humanize and and bring to the fore this issue. people are dying, and we as a country are ignoring the law. >> i don't have a ton to add, but i think some immigration
judges have tried to reinterpret the decisions that have been happening by jeff sessions. jeff sessions famously said that victims of domestic violence could no longer claim asylum in the u.s. that had been in place for not too long prior to that, but some immigration judges have found creative ways to work around i think thereg -- was one case where they viewed all women as a class in guatemala, i believe it was. either way, they found ways to get around this issue. lawyeringome creative around this, but the professor best laid it out. >> to what extent could we see different states or cities go separate ways on this, or disregarding some of what is
decided that the federal level? something like sanctuary cities or states suing over the border even if, legally, we still have federal framework. seehat extent could we states and cities that have larger immigration populations disregarding it? mr. sidahmed: they are trying. new york state in california have been very aggressive in their push backs of trump. the statistics about the number of people obama deported versus trump deported has been bandied about, but part of the reason trump has been not able to depart as many people as obama is because state densities have been working so hard to prevent the trump administration from being able to deport people. there is a lot of things local police departments have been doing around not cooperating with immigration authorities.
there is a lot of things other city and state agencies have done to protect people's immigration data. there is certain legislation that has been stopped for a long time in new york state, like recently, the dream act was passed in new york state, providing undocumented students with tuition aid and driver's licenses. a lot a big thing of people in new york state want to have, provide undocumented people with access to driver's licenses. a lot of times what is happening in rural parts of the state is, people drive without a license, they get pulled over, they end up in some kind of law enforcement situation and get important. even close to the canadian border, local police department -- departments will call customs and border protection at the northern border and tell them to comment translate for them. often times, that leads them to
ice detention. and they have close relationships. an upstate and city divide on the issue of immigration. this is set at a federal level. at some point, there is not much that can be done if you are really trying to find ways around the public charge issue. the city council has been holding so many hearings and trying to do a lot of things, putting out resolutions that say, we do not support this, we oppose this. but fundamentally, if it goes into place, it will impact a lot of people in new york state. there is not a whole lot the city and state can do then. -- can do about that. this issue is: coming down the pike and it is one that i am less pessimistic about than others. the whole issue of sanctuary cities, when you analyze it what it basically means is, we as a city are not going to be an
adjunct to the federal immigration system. we will not routinely report people that we encounter as part of law enforcement if we think they are undocumented. we will not hold prisoners in our jails who are entitled to release. they have this thing called ice detainers, where you arrest someone, charges are dropped, and under the constitution, you are supposed to let them go. the ice detainers says, no, hold them for another 48 hours to check if they are a citizen. it's a gross violation of the constitution. there is a statute called 1373 that makes it illegal, purports to make it illegal, for cities to have policies of not cooperating with ice. the question is, is that constitutional? a lot of conservative
jurisprudence over the past 20 years has been built up around the idea that we are going to stop the federal government from sending these mandates to the states, or what is called commandeering the states. and this is a classic commandeering. for example, the ice detainers, it is not simply that you are violating the rights of people. if you hold a few american citizens in jail with no warrant for 48 hours, you are looking at major civil rights damages. the federal government does not pay the states or the cities the cost of jailing these people. some places like san francisco, it is nearly half $1 million a year that would cost to hold these people on the ice detainers. it doesn't pay or defend or indemnify the cities and counties for the cost of the damages.
the federal government says, suck it up, we tell you to do this. there was a case last term that has nothing to do with immigration. it has to do with sports betting. and in this case, at the behest of the ncaa and the nfl, the federal government had passed a statute that said no state shall legalize gambling on sports, because the idea was supposedly that this will corrupt the purity of american sport. [laughter] if you can walk with me that far. [laughter] and the supreme court struck that down in an opinion by justice alito, one of the most conservative justices, who basically said, to tell a state it may not have certain policies is a gross violation of the 10th amendment. i was reading this and i was thinking, do you realize what you just said? that this almost perfectly covers the situation of the sanctuary city.
so as this comes along, the the court -- the court is going to because -- i think the court may be a lot more ambivalent about saying the federal government can order local governments to do things because when the composition of congress or when the white house changes, that could lead to a lot of things like you shall seize guns, you shall do x. so the sanctuary state battle is very interesting, and i think everything being done at the local level in the sanctuary city area -- in new york, for example, and other places now, immigrants are getting free legal representation, which is not required by the constitution. things like this are very effectual. they are very important and are really having an impact on the ongoing debate. >> i want to make a small comment. i feel like we found this little optimistic island here. good night, everybody.
[laughter] we have plenty of historical precedent of movement or changes of federal legislation that comes at the state level. prohibition that ultimately failed, that women's vote, same-sex marriage, and now we see this going on with legalization of marijuana as well as the dream act. there is plenty of good evidence that states don't have to or are able to push back against an umbrella of centralized government. >> thanks for the enlightening conversation. i would be curious to hear your impressions of the prospects of this forthcoming supreme court case talking about the citizenship question on that senses, whether the historical -- historical senses --new york city or elsewhere
city or in new york elsewhere in the united states? >> what is important to understand is two things. the senses is required by the constitution. it is quite unusual, actually. in most countries, the census is held as they are deemed necessary. there has to be a new one every 10 years. it is explicitly linked to congressional representation. and the phrase used in the constitution for the census is actual enumeration, which, of course, can be read to mean you really have to count. and the language does not say you have to count citizens. it says you have to count everybody. and in 1787, there was a large
number, a huge population, probably more people who weren't citizens one way or another than were, whether they were slaves or immigrants or other things. you counted them all. but the question is, does that mean you can't ask about citizenship? the argument is, and the statistics are pretty clear on this, that if you do that, you will produce a less accurate count. you will no less -- you will have less knowledge about how many people live in a given state than if you don't ask it. so there is a strong argument to be made that this is an actual enumeration, and you should be doing an actual enumeration. there is a secondary argument to be made, and people who have litigated this case up here in new york have done a wonderful job of simply bringing out the evidence on the record that this question is not being put in place for any reason other than politics.
so the question then becomes, does that contaminate the result? on the other hand, the problem that the anti-question people face is that there was a citizenship question on the census up until, i think, 1960. so this is not some radical innovation being brought in. and the final problem with this is, this case is, at its core, political. this case is about who holds political power. and if you look at the track record of this court, in cases like that, it is pretty mixed. shelby county for example. i don't think we will get any ruling against partisan gerrymandering out of this court. i think the campaign finance cases, this court has a certain
approach to politics, which is hands-off and let, basically, the powerful forces do what they want. so it is up in the air. the case has been litigated extremely well, and the record that has been produced and the opinion of the district judge in new york is a brilliant piece of work. >> i think we have time for one more question. >> i don't know if this is going to take us way left field, but i'm wondering, up until recently, i thought birthright citizenship was a given, like it is not a conversation, not a question. and i think about the administration's reaction to puerto ricans on the island after the hurricane. and it seemed like puerto rico is not a part of this country.
and there is this thing of, i'm puerto rican, i was born here, i don't think my citizenship is a question, at least at the moment. but i have family that was born on the island and consider themselves americans. i just wonder if this issue we are talking about now, if people have been thinking about what the possibilities are for territories of the country, commonwealths, pacific island territories, and if an island like puerto rico, in debt and the administration thinks is a real drag on the country, will the isolationists --isolationist's xenophobia thinking carry over into those kinds of scenarios? >> i will say quickly a few
things about that. the first is, it is perfectly clear that the executive branch right now, puerto rico is not regarded as, really, a part of the united states. there were leaked quotes out of the white house of president trump saying, i don't want one dime going to puerto rico. and he is talking about emergency funding, funding that keeps people alive. and by comparison to what was done after hurricane harvey in texas, it is just simply not -- on the other hand, and it is really important not to be too downhearted about a lot of things, on the other hand, the greatest force i find from my limited study of immigration history, the greatest force in moving us toward, in your terms, more generous policies has been family.
families, families come here. the reasons that a lot of the anti-latino policies that are being tried to put in policy and the southwest, in california, for example. if you remember pete wilson in the 1990's who booked the entire credibility of the republican party of california around opposing immigration, not realizing that even undocumented immigrants in the united states and anson uncles -- aunts uncles that vote. and puerto ricans on the island can't vote for president, but there are a lot of puerto ricans in the u.s., continental u.s., who can. and i would say there are probably people in the white house who would love to take away puerto rican citizenship, but they are a long way from being able to do that. and i think, after the 2018
elections, the prospect for real political action around things like this is pretty good. i'm kind of optimistic about puerto ricom in that sense. i do think the connections between puerto rico and the mainland are now so deep. you saw, for example, in floridam during the legislative -- florida, during the legislative races, one of the candidates who was facing the fact that a large number of puerto rican people had come to his district as a result of the hurricane said, i don't think they ought to let puerto ricans vote. and, by the end of that day, the state republican party had issued an apology. they had said we repudiate this, we don't know what this guy was smoking, because it is politically suicidal. [laughter] politics is the friend of generous immigration policies and we need to keep doing it, much more than courts, much more
than the executive branch. and as i say, i may be fooling myself, but i'm optimistic on that particular issue. >> i want to give a little context about the funny status of puerto rico. 1898 was a funny year for the u.s. on a global stage. andcquired a lot of spaces they became part of america, but they're not states, what do we do? what do we do with the people who were born there? what representation do we have? so we gave them kind of a funny status. we said they were nationals, so they could immigrate or move across state borders and into the continental united states, but they were not quite citizens. we made sure to draw that boundary, so there is this weird limbo we continue to maintain. that,f the reason we did we said they would be nationals,
is that we could extend some federal policies to these areas, immigration being one of them. we wanted to be able to make the spaces, which at the time, included the philippines. to make sure people coming and couldn't use puerto rico, the philippines, or hawaii as a backdoor into the country. maybe a sad note to and on, i want to use a more optimistic twist to this. of, the powerd us of families. , theted to add to that coincidence, the unexpectedness of laws and how they become interpreted in the eyes of immigrants. i am going to tell you a story about the visa lottery. the visa lottery was created into policy at the behest of irish-americans, who were
protesting that their people, under 1965, were being disadvantaged. they were not getting enough of the visas, they were not able to use the family unification clause to bring people into the country. they, as historic contributors to america, should have a right to those things. so we now have two kinds of visa lotteries, and these are open to anybody around the world to apply for. there are visa days around the country at internet cafes for -- where people sit and apply, in hopes that they would be one of the lucky few. they recognized places that are often underrepresented. one of the greatest places of new migration, turns out are , places in africa. who knew that the irish visa lottery would be empowering americans to come into the country? the randomness of design, the randomness of people's action. i hope that leaves us on a more
positive note that we can all go out there and change things. [applause] [indistinct chatter] >> thank you, everyone. announcer: president trump is planning to sign an executive order this afternoon that would withhold federal funding from public and private colleges that do not agree to guarantee free speech. the signing ceremony is scheduled for 3:15 p.m. eastern. you can see it live on c-span. later this afternoon, inspectors general from the department of health and human services, justice defense and commerce, speak about their reference to
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