The collaborators

Randy Barnett and Ilan Wurman argue in a NYT op-ed that Donald Trump’s attempt to destroy birthright citizenship has some good legal arguments behind it.

Ilya Somin points out why those purportedly good arguments aren’t, and that the formal legal case for claiming that the 14th Amendment doesn’t naturalize the children of undocumented immigrants is very weak at best. (Note that the Trump administration is going much further than this, by trying to get the children born of people legally in the country under temporary residency status declared non-citizens as well, an issue that Barnett and Wurman demurely dismiss by claiming it’s “a more complicated question not addressed here.”).

But even if there were good formalistic arguments from an originalist perspective — again, there aren’t, but for the sake argument assume there were — arguments like those being put forth by Barnett and Wurman on the nation’s most prominent op-ed page would still be exactly what they are under the circumstances, which is fascist collaboration.

The Trump administration is attempting to carry out an atrocious moral crime, which is to deport millions of citizens in the service of white supremacist ideology. Upsetting 135 years of unbroken legal precedent in order to do this would be a horrendous thing to do even if there were good originalist arguments for saying that precedent is mistaken.

Barnett and Wurman are making bad arguments for collaborating with a fascist regime, but even if they were making good arguments in the narrowest legal sense, they would still be collaborating with the goals of a fascist regime. And that would not make those “good” arguments any more defensible under our present circumstances.

This should be remembered after the present regime is finally defeated.