Dr. John Eastman - Immigration and Birthright Citizenship
Report by Betty Sakai
Introduced by President Joel Fine as a return speaker from 2011, Dr Eastman is the Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence, publishing quarterly a debate on immigration issues. To subscribe, inquire @claremont.org/crb.
Dr. Eastman currently serves as the Henry Salvatori Professor of Law and Community Service at Chapman University’s Dale E. Fowler School of Law. He received his B.A. from the University of Dallas, an M.A. and Ph.D. in Government from Claremont Graduate School. Thereafter, he completed his studies at the University of Chicago Law School, earning his J.D. in 1995. In 1997 he served as a law clerk in the United States Supreme Court with the Honorable Justice Clarence Thomas. He then took a position with Kirkland & Ellis in Los Angeles and in 1999 founded the Center for Constitutional Jurisprudence. He began working with Chapman University where he was named professor of the year in 2003 and served as Dean from 2007 to 2010. Currently he is Chairman of the National Association for Marriage and has received awards from Franciscan University and the J. Reuben Clark Society.
A prolific author, Dr. Eastman’s scholarly publications include “Full Faith and Republican Guarantees: Gay Marriage, FMPA, and the Courts,” in the BYU Law Journal (2006), “The Moral Conditions of Liberty” in Freedom and the Rule of Law (2009), and “The Roberts Court and Federalism,” in the New York University of Law and Liberty (2009). He has co-authored with Douglas Kmiec and Stephen Presser, “The History, Philosophy, and Structure of the American Constitution.” Dr. Eastman has appeared on multiple TV news shows and his writings and commentary on the courts and the Constitution have appeared in many journals and publications.
In the courtroom, Dr. Eastman has represented 17 parties before the Supreme Court. He has represented over 75 amici before the Supreme Court, including in Boy Scouts of America v. Dale (2000), Gonzales v. Carhart (2007), the National Federation of Independent Business v. Sebelius (2012), and Burwell v. Hobby Lobby Stores (2014), Harris v. Quinn (2014), Conestoga Wood Specialties Corp. v. Burwell (2014), and the National Labor Relations Board v. Noel Canning (2014).
In his law practice, Dr. Eastman specializes in major civil and Constitutional litigation. He served the Reagan Administration in the Civil Rights Division, ran for Congress in 1990, and ran for California Attorney General in 2010. Originally scheduled to address the Forum in April, Dr. Eastman’s presentation was switched to May due to timing issues representing a conservative group in Texas being egregiously harassed by an out of control IRS – a case he feels fairly optimistic about.
He talked about his law school education at the University of Chicago, stating he took as many classes as possible and never once saw in the syllabus a class being taught by a Professor Barack Obama. He surmised this was done to provide an adjunct position for Obama with a select group of students who would not challenge him so he could later allege he was a Constitutional Law Professor.
After he was elected to the Presidency, in October 2010 Obama seemed to understand the appropriate role of the President in regard to immigration. He said, ““I’m President; I’m not King.”” Six months later he said, ““With respect to the notion that I can just suspend deportation through executive order, that’s just not the case….There are laws on the books….Congress has made it very clear how we have to enforce our immigration system.”” This was before the 2012 elections when he made it clear he has a pen and a phone and the U.S. Constitution means nothing to him.
In 2012 Obama’s Secretary of Homeland Security Janet Napolitano implemented the Dream Act, effectively stopping deportation for millions of aliens here illegally. Obama then claimed prosecutorial discretion to not deport illegals, overriding the Congressional mandate. Congress uses the word “shall” repeatedly in the deportation statute, providing no discretion. The lawless nature of Obama’s acts are evidenced by the fact that Obama has used prosecutorial discretion in civil law when such action applies only to criminal law. The Congressionally-mandated laws on immigration and deportation do not contain any discretionary power except in cases necessary to protect a drug informant, etc. Eastman cited as an example of prosecutorial discretion a highway patrol officer deciding not to give out a speeding ticket, an action that does not change the law.
By not deporting illegals, President Obama is saying, “You have a lawful right to stay in this country, to lawfully continue to disobey the law.” If an illegal is deemed lawful and receives a work authorization, they will receive Social Security benefits. If they receive Social Security and are low income, they are eligible for earned income tax credits and can file tax returns 3-years back for refunds. The 5 or 6 million illegals Obama has facilitated have extracted tens of millions from the U.S. Treasury with zero authorization from Congress. Obama claims he can do this because he has a pen. If Obama were a Constitutional Lawyer he would know that Article I, Section 1 gives all legislative powers to the Congress, not to the President, not to the Attorney General, not to the Secretary of Homeland Security. Article 1, Sections 7 and 9 state that all moneys appropriated must be by law, by Congressional authorization. Obama has violated all of these things by suspending our laws. Students in High School Civics 101 (if schools still teach U.S. history and U.S. Constitution) can easily understand the U.S. Constitution which was written so that even lawyers like Barack Hussein Obama can understand it.
This is a lawless President. He has been doing things tyrannically without statutory authority. He and his minions have manipulated our language and produced assumptions that words in the Constitution do not mean what they say. There have been no changes in the laws but Obama’s Civil Rights Division in the Department of Justice cites the 1964 Civil Rights Act as providing the right for men who think they are women to go into a woman’s bathroom. In voting booths, Obama has manipulated the Voting Rights Act to force voting places to not check IDs. In things great and small, Obama has exceeded the authority given to him by the Constitution. Asked why Congress has not impeached Obama, Dr. Eastman answered that laws are upheld by political will. President Nixon was impeached because some Republicans joined Democrats in putting the law above politics. But with Obama, Democrats have steadfastly circled the wagons.
Dr. Eastman turned his focus to the 14th Amendment and birth-right citizenship. According to Chairman Linda Chavez of the Center for Equal Opportunity, millions of citizens from other countries now reside in this country illegally. Two-thirds have lived here for more than a decade, have set down roots, and many have become parents to an estimated 4.5 million children of foreigners born on U.S. soil. Chavez claims that the 14th Amendment guarantees these children birthright citizenship. This is refuted by Eastman who states that the 14th Amendment makes clear two requirements to automatic citizenship: (1) being born on U.S. soil, (2) and being subject to the jurisdiction of the United States which is more than being physically present. It is a full and complete, bilaterally agreed upon allegiance to the United States, not partial or temporary or territorial as would be for a sojourner. It is owing no allegiance to their country of origin. For example, a person from England while here must obey our laws but owes us no allegiance. The same applies to the citizens of other nations entering our country illegally who subject themselves to our laws but do not acquire an obligation of citizenship by entering the territory of the United States. Dr. Eastman added that as regards the children, it is common in international law for the children of immigrant visitors (whether legal or illegal) to be considered the same as their parents.
Without full and complete allegiance as evidenced by at least one of their parents being a citizen, the children of foreigners are not automatic U.S. citizens. There must be bilateral consent – intent by the foreigner wishing to become a U.S. citizen and consent by the body politic to accept that foreigner as a U.S. citizen. The right to throw off a former allegiance is not an automatic right to demand consent from the body politic. Legitimate government is grounded upon consent.
Illegal immigration was not an issue in 1858 (except for Indians who claimed a domestic sovereign). Illegal immigration was not an issue when millions in the 1920s were repatriated to their countries of origin during the Great Depression. It was not an issue in the Braceros Program in the 1950s. Foreigners did not make erroneous claims of citizenship until the late 1960s. In 1965 a bureaucrat in the passport office shortened the citizenship status form to exclude questions concerning the citizenship status of the father and the mother. There was no notice from Congress, no direction from anyone higher up in government. Then it began to sink in. To make matters worse, in 1982 the Supreme Court decided that the children of illegals must receive free public education in this country. That action had nothing to do with the citizenship clause but the people thought the unelected judges on the Supreme Court must know something the people who wrote the Constitution did not know. The assumption was made improperly that if you are born on U.S. soil, you are automatically a U.S. citizen.
The Declaration of Independence is the greatest statement of the fundamental rights of ex-patriots having the right to renounce a former alliance, and be accepted by a sovereign that has the right to consent. There must be an offer of citizenship and that offer must be unilaterally accepted on both sides bilaterally. Regarding lawyers and their devotion to civil law precedence, lawyer jokes he mused are by and large not jokes. Law is one of those professions where 99.9% give the rest a bad name.
Dr. Eastman explained that the manner of suspending a law is the same as making a law. Laws have to go through Congress to be created and go back through Congress to get changed. Even when exercising discretion, the President cannot give out benefits. Benefits require an act of Congress. Citing the occasional acts of other Presidents does not provide authority to this President. It only provides greater proof that Congress knows what discretion it wants a President to have. This President has overstepped his statutory authority all over the place.
Concerning the requirement for a President to be a natural-born citizen, Dr. Eastman likened natural-born to one who is a natural-born athlete, a natural-born leader, etc. etc. Two U.S. citizens have a baby and their child is considered natural-born even if the child is born on a military base or in another country. So, it is the citizenship of the parents that determines whether a child is natural born. Dr. Eastman added that the Supreme Court has never addressed this. Constitutionally, only a natural born citizen is eligible to be President or Vice President. All other citizens – naturalized citizens -- are eligible or all other offices.
Asked how an average citizen can affect change in illegal immigration, Dr. Eastman noted that in California, Prop 187 regarding illegals being eligible for public benefits was found to be unconstitutional by one federal district court judge. The case did not proceed to the appeals court. Section 3.5 of Article 3 in the California Constitution states that unless a state law is found to be unconstitutional by a court of appeals, it remains valid. This means that any welfare official can be sued personally for giving out tax money to illegals. Eastman is looking for a case that will win in the court of public opinion. He needs a legal citizen who has been denied benefits due to illegals depleting funds.
Regarding the proposed appointment of Merritt Garland to the Supreme Court, the fight is over whether the Constitution binds the Judges to support it. There is no such thing as being a moderate. One is either for the Constitution or opposed to it. Garland has opposed upholding the Constitution in every one of his cases.
Concerning those who are afraid of a Constitutional Convention, Dr. Eastman noted that it is specifically authorized by Article 5. It can be specifically defined as to what will be discussed. It requires 34 states to call the questions and 38 states to ratify them. It will not be a 1787 Constitutional Convention, but an Amendment Convention. Truthfully, he said, we have been living in a perpetual Constitutional Convention every time the Supreme Court meets since 1938. What is needed is to refigure and restore limits on the Judiciary.
Asked why Judge Roberts frequently votes for liberal causes, Eastman said that Roberts grew up in the era of judicial activism. Obama-Care is unconstitutional because the federal government cannot regulate trade inside the states. Everything that has an effect on the economy is deemed the Commerce Clause. It’s not just the spending. Congress can only tax for the general welfare, not for local welfare or services. It can only tax for the common defense, not for a police department in a state. But Congress cannot be expected to check itself. It’s the duty of the Court to strike down actions that are not Constitutional. Dr. Eastman commented he had received many disparaging emails when he commented that if Supreme Court Justices are not willing to strike down such an unconstitutional action as Obama-Care, they ought not be in the Judge’s seat.
The information Dr. John Eastman had provided was remarkable and enlightening. The Forum audience provided a standing ovation. It had been a long but every informative evening.
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