Trump, Birthright Citizenship, and Ambiguity

Most news media is next-to-useless. Not all, and not entirely; just “most” and “next-to.” I gave up on cable news a long time ago and would hazard that all cable news is entirely useless. Some is proactively toxic, but none is helpful. I bailed on big newspapers more recently. We still subscribe for the local news and the investigative journalism is absolutely vital, but the political desks of most newspapers are little better than the flashy vacuity of television. Opinion pages employ some good writers but even the most gifted can say the same thing only so many ways and so many times before it sours on the tongue.

My New York Times app is no longer connected to our subscription, but I decided to leave the app on my phone so that I’d get the push notifications – at least get a heads up when troops are deployed, a major law passes, a hurricane makes landfall, etc. Today I got a notification that reminded me why I avoid being too thickly drenched in the mess:

“President Trump said he was preparing an executive order to end birthright citizenship. It is unclear whether he can do so unilaterally.”

Their intention is obvious. It is unclear whether Trump can end birthright citizenship unilaterally. On the contrary, it’s not a foregone conclusion but it’s at least reasonably clear that he can’t. But the slight and unintentional ambiguity in the statement betrays a repeated failure of even reputable news media to see clearly the problem the Trump administration presents. It is not at all unclear whether Trump can prepare an executive order to end birthright citizenship unilaterally. He most certainly can. He can do whatever he wants by executive order.

As the Times column points out, he may not issue the order, the order would not necessarily do anything immediately, and it would run into an enormous stumbling block in the Fourteenth Amendment and a hundred and twenty years of judicial precedent. But the column misses the forest for the moss on a stump. Effective policy is not the point. Trump’s point is likely to rile up his base, to distract from the violence committed in his name in the weeks leading up to the midterms, and little more. His advisors probably have more in mind and history suggests that observers should be wary far beyond the possibility that such an action will actually go into effect.

Persecution only rarely comes in the form of intentional government policy, methodically enforced. More often persecution – particularly that of state-sanctioned mobs and fury against racial, ethnic, religious, or class enemies – comes in a combination of ambiguity and confusion with bureaucracy and populist rage.  We are by far most inclined to miss the ambiguity. The confusion of policies in action arouses anger, the callousness of the bureaucracy provokes disgust, and the fury of the mob sows fear. We see the ambiguity merely as a means rather than as an end itself. To us, ambiguity is the means by which a goal is accomplished and ambiguity simply can’t be effective the way that focus and clarity are. But the ambiguity isn’t an unintentional byproduct of administrative idiocy. It’s the goal.

Hannah Arendt wrote extensively about the means by which fascists in Europe set about persecuting Jews and other minorities. Her most relevant observation was that all totalitarian governments relied on “statelessness” for their systematic persecution. An illegal immigrant has rights simply by being designated “illegal.” The word “illegal” establishes a relationship to the law, even if that relationship is opposition. There are processes by which undocumented immigrants are deported, but when the government fabricates a crisis and refuses to recognize refugee status or determine whether immigrants have any claim to the process it designates, then there is no legal process for dealing with them. Arendt noted that this sort of “alegality” was different than illegality and a crucial means by which fascists and bolsheviks accomplished their violence.

When people have no relationship to the law whatsoever, then there is no means by which the law can protect them. The ambiguity is not a kink to be worked out, but a goal of this administration’s immigration policy. Mainstream news organizations seem determined to miss that point. The purpose of any executive order that Trump may issue regarding birthright citizenship is not to settle the legal issue, but to jerk the legal issue up by the root and let those affected flounder in fear and uncertainty.

An executive order would lead some ten million people, previously assumed to be citizens, to fear that their citizenship could be revoked. Their lives could be upended by aggressive government agencies before the issue settled. They could be subjected to intrusive investigations of their parents and families, with their parents’ legal status calling into question their own. What happens if one parent is a citizen but the other is not? What happens if the parents flee or have died and their legal status cannot be determined? Uncertainty abounds and we found out several months ago that, in such uncertainty, ICE agents and makeshift detention centers easily fill the breach.

The extreme elements of the administration – the Stephen Millers, for example – don’t want customs and immigration officials to be bound by laws more favorable to their cause. They want them unleashed – bound not at all. They want the breach.

I already quote Hannah Arendt too much, but the most eloquent passage in her massive study on totalitarianism is one that refuses to cede its relevance:

“Then all debate about the truth or falsity of a totalitarian dictator’s prediction is as weird as arguing with a potential murderer about whether his future victim is dead or alive – since by killing the person in question the murderer can promptly provide proof of the correctness of his statement. The only valid argument under such conditions is promptly to rescue the person whose death is predicted.”

This is not a legal issue. It’s a humanitarian one.