Birthright Citizenship & the Unitary Executive Theory with Law Professor Henry Chambers

In this episode of Faithful Politics, host Will Wright sits down with Professor Henry Chambers from the University of Richmond School of Law to unravel the complexities of birthright citizenship, constitutional law, and executive power. From the origins of the 14th Amendment to modern challenges posed by Donald Trump’s recent executive orders, Professor Chambers provides a deep legal analysis on what it means to be an American. The discussion explores how birthright citizenship has evolved, Supreme Court cases that have defined it, and the unitary executive theory that shapes presidential authority. Along the way, they discuss Trump's recent actions, the impoundment of funds, and the broader implications of unchecked presidential power. This episode is essential listening for anyone who wants to understand the legal and political battles shaping America's future.

Guest Bio:
Professor Henry L. Chambers Jr. is a distinguished scholar and professor at the University of Richmond School of Law, specializing in constitutional law, criminal law, employment discrimination, and the intersection of religion and law. With decades of experience in academia and legal analysis, he has contributed to major legal debates and provided expert commentary on Supreme Court rulings and executive authority. His work has been widely recognized for its clarity and depth in explaining complex constitutional issues.

Transcript

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Hey, welcome back, Faithful Politics listeners and viewers. If you're watching us on our YouTube channel, we are so glad to have you. I am your political host, Will Wright, and your faithful host, Pastor Josh Bertram, can't be here today. He's got some important things he's off doing, but we are here back with Professor Henry Chambers, and we're so glad to have him with us. He is a teacher at the... I have kept the school wrong, because I didn't write it down. University of Richmond School of Law, is that correct? So he teaches and writes in the areas of constitutional law, criminal law, and religion, as well as employment discrimination. And today he is going to talk to us about birthright citizenship, among other things. So, hey, welcome back to the show, Henry. Glad to be back, well, good to see you. Yeah, good to see you too. just for those watching on YouTube, if you notice that Henry Chambers is really, really dark and it's not just an excess of melanin being generated in his body, it's the lighting. He's in a closet or in a conference room. in an ill-equipped conference room, unfortunately. Because my office is not available right now. It was damaged by a tree about three months ago, and I still have not been able to get back into it. Yeah, and I should mention that this episode is not sponsored by Lowe's, who have like a really good product placement in your background. But we're not opposed to getting sponsorship from Lowe's, so if you know anybody, help a brother out. yeah, so let's talk about Birthright Citizenship. That's kind of been on the news. I think it's widely misunderstood, even by myself, so I'm putting myself kind of in that. in that that will how so let's let's start there let's talk one what is birthright citizenship and then we'll we'll kind of drill down to some of the the current debates and and discussions about it Sure, so when we think about birthright citizenship, we generally think about the question of how you get citizenship and should you get citizenship if you're born here. There are some countries that do citizenship based solely on the blood of parents. Some of them do it based on where you were born. So it's not an odd thing to think that you might have birthright citizenship because you were born here. Now, before 1868 and the 14th Amendment, which brought us birthright citizenship, it was somewhat unclear who was a citizen, who wasn't a citizen, issues along those lines. Now, we did have some language about native-born folks running for president, but it was a little unclear. The issue that became a real problem was the Dred Scott decision, which deemed black folks, whether free or enslaved, to not be citizens, period. In the wake of the Civil War, we got the 13th Amendment, which abolished slavery, functionally speaking. We got the 14th Amendment, which gave birthright citizenship, which essentially said, look, if you were born here, then you have birthright citizenship, which essentially made citizens of the lion's share of free blacks and freed slaves in the wake of the Civil War. So that in a nutshell is sort of how we got there. So let me stop there for a second just to make sure we're clear that I didn't leave anything out. Yeah, no, perfect. So the birthright citizenship mentioned in the Constitution is located in the 14th Amendment. Is that correct? Got it. How did it end up in the 14th Amendment? Because the 14th Amendment seems to be the catch-all for some reason. So how did it end up? I think you were sort of starting to touch on it about the Civil War stuff, but I'm just kind of curious. Yes. So here's the thing. And it's a fascinating question if we go back and we just think about, well, what makes a citizen and how do we define citizenship? And we didn't have a great definition of citizenship, particularly not national citizenship, in the antebellum period. There certainly were some notions of citizenship, and certain people essentially were treated like citizens, and you certainly could become naturalized and become a citizen, but it was an inclusive, exclusive question. And like I say, when Dred Scott came out in 1857 and said, hey, well, know, black folks can't be citizens. That became a bit of a problem because you now had different classes of people inside the United States. Well, we get the Civil War, we get the 13th Amendment, which functionally abolishes slavery. So now you have functionally a bunch of people who are free, but who may or may not be citizens who are sort of roaming around. Now, the Civil Rights Act of 1866, which was passed in between the 13th Amendment and 14th Amendment, provided for birthright citizenship, but that was just a statute. So there was some concern that if things turned, if the politics turned, what have you, it could be repealed. So the notion was, well, let's put birthright citizenship into the Constitution itself. And that's how it got there under the 14th Amendment. My take on the 14th Amendment is that it became a bit of a catch-all because folks looked up and said, some of the work that we thought might have been done by the 13th Amendment wasn't. So we better enshrine this in the 14th Amendment just to make clear that we were serious. Okay. then you get the 15th after that, which arguably says, and we were doubly serious, we're now at least going to limit how states can regulate the right to vote with respect to race. Got it. So prior to that, the Constitution or maybe just more broadly, just the founders didn't really have these in-depth conversations about, we've got this new country now, you know, let's talk about who can be a member of this country. Like there was no light discussion like that. Right, so when you think about the notion of We the People, it was just a wild assertion. I mean, I'm not saying it wasn't a good assertion, but it was just an assertion. Well, We the People. Well, what did We the People mean? Look at this way. When we started the country and we thought, well, who's a part of We the People? We could have said, well, the folks who fought in wars were part of We the People, but that would have included some black folks. We could have thought, we the people are the people who live on the land known as the United States. Well, that included some of our Native American brothers and sisters. Hmm. So when we think about who we the people are, if the notion behind we the people is, we the people includes the in crowd, then you can start to exclude people who are still here and say, well, we the people doesn't really include everybody. And to the extent that we didn't really have a specific or narrow notion of citizenship, we had some idea that that some people were clearly citizens and some people were sort of might be citizens, we kind of needed to have rules. So once we got the Constitution, there was the notion that you could deem someone a citizen through immigration naturalization, but who was outside was unclear, particularly folks who were outside even though they were born here. Right, so think about that for a second. If you were an immigrant from another country, then we clearly knew that we needed to make you a citizen. And it was fairly easy for white folks to become citizens. That's not just me saying that the Immigration Act of 1790 limited naturalization to free white folks. But what do you do about people who don't have a country other than this one? So take folks who, take African Americans who were born here, who may well have been born free, should they be considered part of the people who are we the people? I would say yes. Some other folks might say no or just ignore the question altogether. even though there were states that allowed free black people to vote, and frankly there were some states that allowed women to vote, even though there was never really a question that white women could be citizens of the United States from day one. So it's a very interesting thing if you sort of look back and say, huh, how do we define who's a citizen when... What we have is the basic notion that citizens are people in the in group and non-citizens are people in the out group. How do we define who's inside, who's outside? And how you do it with slavery is tough too because we know that slaves are not citizens. That's sort of definitional. You're under subjugation of someone so you can't really have a free relationship with the government and with society. So that's a tough one. And of course, like we say, how we dealt with free African Americans was a tough one as well because there have been free blacks in this. place called the United States since before the thing was called the United States. that's another thing that people forget is you really have had free black folks around the US since before the US was called the US. So how do we get from, you know, slaves, you know, or how do we get from the United States determining if slaves are citizens of this country to at least like immigrants specifically from our southern neighbor in Mexico, you know, like, depending or determining whether or not like these people are citizens or not. We don't have to get into the you know, the immigration sort of like discussion. But if you were to trace kind of like from slavery to today, was there anything in between that kind of helped strengthen the definition of what it means to be a citizen in this country? You know, there were notions of who's in, who's out, and as we sort of finished filling out North America, at least our portion of North America, things got sort of clearer. And we start to say, well, okay, if you're here, then you qualify as being a citizen and you're one of us. Let me throw out something that I mentioned to here on occasion here in Virginia and in other places as well. But in Virginia, it resonates a bit. If you tell somebody that your family has lived on the same plot of land for the last 400 years, We go, wow, you're one of the first families of Virginia. You are as American as we can possibly think you could be. Now, if you live in Albuquerque and your family has lived on the same plot of land for 400 years, we act like you're not from here. Now, that's sort of piece of the puzzle. there's some folks who've already, can't remember who said it first, who said, for many of the of our brothers and sisters in the southwest they didn't move across the border the border moved across them so that the concept of who's an immigrant and who's not. And even when we say, well, you know, we're a nation of immigrants, well, we know that that's not quite, that's not completely the case. Some folks were here first and some folks didn't kind of come, didn't really come voluntarily. And other folks have just lived in the same place for a long time, but the people who claimed sovereignty over the area has changed. whether was the French, whether it was the Spanish, whether it's the Americans. So the question of immigration is an interesting one. And of course, for some folks, their people as such just sort of lived in a general area that has been contested. for a number of years. So I think to some folks, it's a little odd to talk about, well, immigration, this, immigration, that, and am I a part? What do you mean? My folks have been around this area for a while. You may have the Rio Grande cutting across it in certain places, but this is just sort of generally where my people are from. So it's really odd to talk about. immigration, non-immigration, well I'm from here and I'm it's like well I'm just from here. What government is responsible is kind of a different story. So I mean I realize we're getting a little farther away from birthright citizenship but but you but you see what I mean? That is heck go back to the founding fathers. When you think about folks like Alexander Hamilton who was not born in the United States. So we wouldn't think of him as being a birthright citizen as such, but we sort of just treat him as a citizen because as of the time that the U.S. was, we'll say, instantiated under the Constitution, he was clearly one of us by that time. Yeah. So those are sort of pieces of the puzzle. He was an immigrant as such, but to the extent that he had been here for a long time by the time we got to the Constitution, you didn't really think of him as a pure immigrant. You just said he's just one of us. Now keep that in mind and I'll jump all the way forward and then we'll go back. Keep that in mind when we're talking about DACA kids. Yeah, I was going to ask you and I'll keep the answer to this question in the back of my mind too, but how many other founders weren't born in the United States as we know it today? Well, depending on how you define it, none of them were born in the United States. That is to say, the argument was in 1776, or let's say really 1774 and prior was, we're Englishmen. Give us the rights of Englishmen. The reason we had to declare independence was because Great Britain was not providing the rights of Englishmen to American colonists. So the American colonists said, let's leave. So what I mean by that is when they were born, there was no United States of America. Now they were born in the physical place that became the United States of America. But that's the same way we might talk about our our Southwestern brothers and sisters. Right. They may have been born, you know, a hundred years ago in a place that became the United States of America, but when they were born there, it wasn't that. So when we think about that piece of the puzzle, the question of, who was a citizen as of what time is the fascinating question. That indeed was one of the fights that I've had in print regarding Dred Scott. I mean, I shouldn't say it's a fight. There's no one there to argue the other side. But the notion that Chief Justice Tawny talked about in Dred Scott was, well, at the time of the Constitution's ratification, the in-crowd didn't include black people. And a fair response is, I don't know what you mean that the in-crowd didn't include black people. Black people have been here since essentially since the early 1600s, just a few years after folks came and landed at Jamestown. So that notion of who's in and who's out has as much to do with just American attitudes, the American attitude of the elites, as it really has to do with who's really here and who's not. When you think about folks who were born at Monticello, for example, and folks who were born in other plantations, say in the early 1700s. Yes, they were enslaved, but some of those folks were freed. But they were as Virginian as anybody else, certainly as Virginian as anyone who came over in the mid 1700s. So those are the kinds of things where we think about clear lines, but American history doesn't give us clear lines. And if American history doesn't give us clear lines, neither does today. Neither does today. And the reason why we talk about DACA kids is because DACA kids clearly were not born here. That's the point. They're not birthright citizens because the whole point is they were born somewhere else but were brought here so young that they don't really know any other places home. Now if you ask the question, are DACA kids one of us? The answer is, of course they are. Of course they are. Who else are they? All they remember is here and we are treating folks, if we're treating folks in a faithful and Christian way, they are us. Yeah. that's the piece of the puzzle. And I know that there's some people who would disagree because they say, well, but they weren't born here. It's like, that's not what we're talking about. We're talking about, are you a part of the thing called America? And it used to be that we thought that people who hitched their wagon to this thing called the United States of America, or the idea of the United States of America, they were Americans. That's how we used to do it. Now we seem to be drawing lines and saying, stay out in a way that historically was a little bit different, at least when it came to the people we wanted to be here. I'll put it that way. Could you talk about challenges to birthright citizenship, Supreme Court cases that have challenged the interpretation of what it means to be a citizen? Yeah, the big one, or one of the big ones that we think about is a case called Kim Wong Arc. Here is a thing that's interesting. I have done some teaching of the inclusive Republican issues along those lines, to federal folks, which I know is dead now. You can't say the I word this is a family show That's it. There you go. Inclusion. my goodness. We know we know Jesus would never have been about inclusion, but we're a Christian nation. The thing about about Kim Wong Arc is for many years in the late 1800s, we had a problem with Chinese immigrants in the western part of the US. By we, I of course don't mean me and you. I just mean the country had some issues. And the notion was that Chinese immigrants were impossible to assimilate. That was a concern and that's what got us what we call the Chinese Exclusion Act, which essentially said, hey, you gotta go back. So here's what happened with Kim Wong-Ark. Kim Wong-Ark was born here. to parents of Chinese descent who were not citizens because they were not allowed to become citizens at the time. So he was born after 1868, so essentially birthright citizen assuming that he was born under the jurisdiction of the United States. So in 1898, we get the case Kim Wong Ark and here was the question. Here I'll just read out what the court said. The court said, the single question stated at the beginning of this opinion is whether a child born in the United States of parents of Chinese descent who at the time of his birth are subjects of the Emperor of China. but have a permanent domicile and residence in the United States and are there carrying on business and are not employed in any diplomatic or official capacity under the Emperor of China, does that person become, at the time of his birth, a citizen of the United States? So recognize that that was the question. But both of his parents were clearly still Chinese. They were not American citizens. They were here lawfully, but they were not American citizens. And the court in 1898 said, for the reasons stated above, this court is of the opinion that the question must be answered in the affirmative. So Kim Wong-Ark, child of two non-citizens, who clearly were still Chinese nationals, born here is an American citizen. That essentially is the, excuse the pun, the trump card that is out there. And the notion is, since the Supreme Court's position on birthright citizenship is, you don't have that, parent needs to be a citizen. If you're born here, you're a U.S. citizen. That tends to be what people hang their hat on in terms of birthright citizenship in terms of saying, if you're born here, assuming you are not in your parents are not in the diplomatic core, you are a U.S. citizen. And that's part of what of what Trump is is trying to and some of his friends are trying to get around. Now, I understand. They're trying to get around that. Their take is that just because you're born here doesn't mean that you are one of us. But at least the general notion has been, well, you're born here and as long as you're under the jurisdiction of the United States, you're kind of one of us. Now, I recognize that there are some folks out there who would say, well, But when it came to Native Americans, Native Americans were clearly born in the United States, but they weren't automatically citizens. And our response is, well yeah, but that's a little different because the way we treated tribes or Native nations is they were treated as internal nations of their own who were located in the United States, but who were really a separate nation. And we can understand that if the notion is I'm a part of a separate nation even though I live here, then we can understand why for many years we may well say, well, you don't really qualify. Now, in 1924, we changed that and as a consequence, all Native Americans, birthright citizens, because the notion was, yeah, we're done with the concept of having internal, external, still a member of your tribe, but also a birthright citizen, you're US citizen. So that's kind of what we've had to deal with and work through. I'll pause there for a second. There's one more issue that I want to bring up, but I'll pause there for a second just to make sure that I clarify if I need to. You brought up something when you were talking about non-diplomat. What's the diplomat angle? If you're an ambassador and you've got whatever office and you have kids here, does that apply to them? Right, they would typically not be birthright citizens. Because the notion really is, you're here serving another country. The only reason why you're here is that you're serving another country and our take is diplomacy wise, okay. Now, if you have one who's a diplomat and one who's an American citizen and they're married, that can be a different story because that's based on... on the blood of one of the parents. But the notion generally is, yeah, if you're talking about kids of diplomats, yeah, that doesn't qualify because that's just too weird. I don't mean it that way. But that situation is one where why in the world would we assume that you would be a U.S. citizen because it's clear that once your term here or your business here is done, you're going to go back. So that's... That's one where it makes some sense, where the notion of not being under the jurisdiction of the United States makes some measure sense. That's got to cover something. So covering, so in some ways covering native nations and covering people who are from other countries who are here only because they're from, they're representing their own country. Those are folks who would say, well, yeah, it doesn't make sense to treat children of those folks as, as broke rights. Yeah, just one more question before we kind of move on, but is the United States like the only country that has, you know, this kind of form of birthright citizenship? No, there are some others. There's some that don't, but there are some others that do. I'd have to take a quick look to look at the ones who do and don't, but it's not a crazy thing. Here's the part that can get kind of... Odd. Imagine the concept of birthright citizenship. 150 years ago, before we had sort of fully formed our borders. So we're still worried about part of the West, which is not necessarily under our control. We have Alaska, but we haven't really done much with it. We don't have Hawaii. We don't have Puerto Rico. So the question of of what we want to do with Birthright Citizenship can very well be, we want more people. We're thrilled to have more people, so we're happy to just say, look, if you came here and you had kids here, fine, all y'all can be citizens. Right? I mean, at a time we're trying to fill up the country, that makes sense. Once you've established your borders and you're pretty much set, You can understand some of the folks going, hey, now we've got to stop with this birthright citizenship stuff because we view ourselves as being all full up. And I realize that's not a real term, but that's the language some people use. And some folks will also say, you don't have a country if you don't have a border. Well, mean, yes and no. But for many years, America didn't have a problem with welcoming lots of people in. because we were ready to become bigger and we needed more people. In the same way that there were some states that allowed non-citizens to vote in elections up until functionally just after World War I, because the notion was we're happy to have people here and one of the ways that we can tie you to this country is to treat you like a citizen before you are a citizen. You're one of us before you're really one of us. And that's one of the reasons why for a number of folks as they were moving out west, the notion was if you are ready to hit your wagon to the US, even if you're not quite a citizen, you can vote. We're cool with that, right? So you can see how birthright citizenship in a country that's trying to get people. may have a different valence than in a country where your borders are all set and you don't think you need any more people. Right? And that's also the way sort of immigration works in that respect. Yeah, our doors are open when we need people, but once we think we no longer need people, it makes more sense for some people to say, well, let's shut the door. Got it. Yeah, that makes a lot of sense. I mean, given that there is an amendment in our Constitution and a Supreme Court case that, you know, kind of provides some level of clarity to definitionally what birthright citizenship means. Like, I'd imagine it's pretty hard to get rid of it via executive order, unless there's like a carve out that I'm unaware of. Yeah, so here's the thing. The difficulty is how you define birthright citizenship. Now there are some situations where everybody agrees, of course we're talking about birthright citizenship. You have two citizens who have a child while in the United States. Like me, right? Both of my parents, American citizens, had me. Obviously I'm gonna be a birthright citizen. Then you start asking questions. Well, okay, what about people who... don't fit that category. Could you redefine, I mean we know what the Supreme Court said in Wong Kim Ark, but why is the Supreme Court the only group that can define what qualifies as birthright citizenship? Indeed what President Trump and some of his allies are arguing is we're not getting rid of birthright citizenship, we're just defining it in the way that it should be defined. And the question becomes, what you gonna do about that? Do we look up and say, hey, Wong Kiem Mark says this, and that's what the Constitution says, or do we say, well, know, the Supreme Court overrules itself on occasion. So as a consequence, birthright citizenship means how we define it, either by statute, or by executive order or what have you. And if you don't like it, go to Supreme Court and you figure it out. So that's part of what Trump is doing is he's redefining birthright citizenship and saying, but I'm not taking it away. I agree that birthright citizenship exists. I'm just redefining what qualifies as birthright citizenship. And as crazy as that may sound, it's not that much crazier than what the Supreme Court has arguably done with certain terms in the Constitution and said, it doesn't mean what we thought it meant, so we're just going to say that it means something else. That part is probably the scariest part of what we're looking at. One person just saying, I want things to be this way. and the country's in turmoil until the Supreme Court figures out what the story is. And even then, what if the president says, I don't care? Yeah, they're the Supreme Court. That's their opinion. This is what I think it should be. And I've got the military. mean, those aren't... by the way. Well, exactly, right? mean, the fact that before the immunity decision came out... I would have been quite surprised at the way they defined immunity. Now, I can defend part of what they did. And we don't have to go into it now, but I can make a decent defense for part of what they did. What I can't do is make a defense for all of what they did. And they didn't bother to explain, the Supreme Court didn't bother to explain their decision. sufficient with sufficient clarity for us to understand that they can't possibly mean what they said they can't and I guarantee you they don't but they just left it hanging right so those are those are situations where where we have to look around and say hmm buck them up because this is gonna be interesting Well, it's funny because before we started recording, I was like, you know, like I'm doing okay, considering everything going on. And then I mentioned to you that it's going to get worse. So like your buckle up, I think is kind of tied to that, you know, like buckle up. We don't have like a full fully approved cabinet yet. So who knows what's going to happen. But I want to ask you. No, no. this isn't a knock. Here's the thing. This is not a knock on Trump as such. This is a knock on the concept that the president has this kind of power. This is just not the way that the system is structured. It's not structured for the president to assert all of the power and say it's my way or the highway. That's just not how things work. And I recognize that some folks have argued, well, other presidents have done stuff in the past. Hey, that's fine. In my lifetime, I have not seen a president break or try to break this many things this quickly. And let's be clear, he said he was going to break them. And I think a lot of people didn't believe him. But I've never seen someone try this kind of thing. The stuff he's trying to do with with with USAID, the stuff he's trying to do with impoundment and and not spending money that has been been appropriated and allocated. That's that's a little that's a little wacky. The concept that I'm going to freeze all loans and grants. I realize they walked it back, but but they really didn't walk back. Apparently didn't walk back the order. They walked back the memo describing the order. So we're still not quite sure exactly what's going on in terms of grants and loans. And recognize that some of those grants and loans are going to go to spots that really need them. And I mean, I like to say that all of it's going to go to places that really need them. shelters. Folks who are doing on the ground work that no one thought would be held hostage to a president's whatever, things along those lines. So the notion that the local food bank that you support and that you thank goodness is there because some of our neighbors simply do not have the resources to be fed, those are some of the places where you say, if you cut off funding, even if you delay funding to those places, they can't operate. That's what we're talking about here and that's something that we have not seen. We simply have not seen, at least in my life. Yeah, I was, was opining to somebody recently about, you know, the TikTok thing, for instance, you know, that had legislation passed in bipartisan manner, president signed, Supreme Court 9-0 says, yep, yep, it's good, you know, and then one stroke of a pen. It seems like, like the president is overriding what the three branches of government said should happen. I mean, regardless of where you fall on the TikTok spectrum, it's like, Like we do have laws, right? Like, so you know. That's and that's that's the structure that is that that's a little frustrating and and is is a little tough is of course we have to have a president. No one's denying that. And yes, we recognize that the president has an agenda. OK. But the question of whether someone was elected to completely overturn the government is another story. I would ask some folks to think about... pastors and when you get a new pastor and Whether the pastor is supposed to tread lightly for a while Or whether the pastor comes in and just starts flipping over tables It exactly where I'm gonna change everything that you all do and some of you go whoa We understand we need to have a senior pastor or or or or rector or what have you we understand that But nobody asked you to do all of this stuff. We had a pretty good thing going. We need someone to run what we have better. We don't need someone to come in and pull up everything root and branch. That's something that people have to ask themselves. And I recognize that yes, no question, President Trump was elected. No one doubts that. the issue of what he was elected to do. is a different story. So we'll see how that shakes out. Yeah. So there was an article that came out in Axios today titled, 18 Republicans cite 1600s case law to defend Trump birthright citizenship order. And it's called the Calvin's case. Some 1608 British legal decision that held that children born in Scotland could be regarded as English subjects after Scotland's James the first ascended to the throne. Are you familiar with Calvin's case at all? You know, there was a time when I was, I do not remember the specifics. Here's what I would say. When one has to go to 1600s Scotland to find the justification for something that we passed and ratified in 1868, you know you're desperate. And again, let me clear about this. We have had discussions about birthright citizenship in the past and whether someone was a natural born citizen. There actually was a debate and let me and I will say flat out I am down with the position that John McCain was a citizen. But here's what the debate was leading up to the 2008 election. John McCain was born in the Panama Canal Zone. Hmm. granted maybe in the next few weeks, who knows, maybe it'll be American land again. But he was born, he was born in the Panama Canal zone to his mother and his admiral father. So he's born there. There was a question in terms of statutes about whether someone who was born of American citizens who was born in the Panama Canal Zone qualifies as a natural born citizen. Now remember the problem here. He wasn't born in the United States. So he wouldn't have been covered by the 14th Amendment Birthright Citizenship piece. So instead you needed a statute to explain that he was a natural born citizen. That is a citizen who was a U.S. citizen as of the moment of his birth. There were some people who argued he was not a natural born citizen. He was born and by statute was immediately made a citizen, but that he wasn't a natural born citizen. Now, again, my take is, are you kidding me? He was the son of an admiral who were serving there. I don't care. Let the brother run for president. Yeah. Right, that was my take with John McCain, but I understand why people would say, well, let's go ahead and look at the statute, let's go figure, figure that out, no, no, no, In the same way that in terms of with Barack Obama, the claim regarding Barack Obama, and I realize that this is, the claim with Barack Obama was not that he wasn't born of an American mother, he was, it was that the way the statutes were written, that he was not, automatically an American citizen and because of the time she may have spent in Kenya, there was a structure of statutes. So I say all that to say the 14th Amendment does need to be enforced through statutes. It's just that we thought that the language from the Constitution and the language of statutes made it pretty doggone clear what we as a country thought about the concept of birthright citizenship and who would qualify as one of us immediately when they were born. That's the part that's being changed right now. I'm not saying that it's impossible and that it's a crazy way of thinking about birthright citizenship. Just saying we thought we had this settled 125 years ago and now we're starting to rethink things like this because the president's not happy about undocumented immigrants. Really? Really? That's what we're doing? Really? Anything else to say about the Birthright Citizenship thing? then I want to sort of like shift gears and talk about unitary executive theory. Yeah, yeah, we can lay the birthright citizenship piece to the side. In that basic concept, birthright citizenship is in the Constitution, but it's not explicitly defined. So someone has to define it. The Supreme Court defined it a while ago. Congress also has some legislation about it. And the president is walking in and essentially just taking a machete to some of that stuff under the guise of saying, I'm just defining birthright citizenship a little differently than other people and because I'm the president I get to do that. Which arguably is what actually takes us directly into the unitary executive piece of the puzzle. you go. Great segue. So what is the unitary executive theory? Yeah, the Unitary Executive Theory is one that jumps off of a piece of Article 2 of the Constitution. Article 2 says the executive power shall be vested in a President of the United States. And some people take the position that that means, the President and only the President can exercise executive power. So the president can divvy out that executive power to other people. But if we call it executive power, the president has the right to do it. And if you view it that way, then the president does have a ton of power, particularly if you view it that way and you then define executive power broadly. So that's a piece of what's doing. If you take a look at the executive orders that President Trump has issued, what he is essentially saying in many of them is, I am defining this stuff as being executive area or executive power, therefore I get to decide what's going on in that area. And if there's a statute that says that I don't, then it's unconstitutional. And if you believe that the that the president is the only executive and the only person who can exercise it, or at least the person who doles out the power, then you might in fact say, yeah, it is unconstitutional. That statute is. And indeed, and here's the small piece when we talked about immunity before, that actually is pretty much the structure of the court's immunity opinion. The court's position is a statute passed by the legislature signed by the president so a statute that infringes on the president's power is unconstitutional if it impinges on his executive authority. That's why they argue that he's got immunity for executive acts that he took because he people he said I don't care whether the legislature passed a law If you are infringing on the executive's ability to do the executive's job, then that statute is unconstitutional or at least simply doesn't apply to those things that are core executive functions. That's how the executive, how the unitary executive piece flows through the Supreme Court and then gets us Trump versus US and Trump saying, I've got the ability and I've got the power to do all of this stuff. That's the stuff that's kind of scary. You know, just probably should have backed up and done this earlier, but can you talk just a little bit about executive orders? know, kind of like what can they do, what can't they do? Broadly speaking, know, nearest I can tell presidents can issue a whole bunch of like decrees by virtue of like proclamations or memorandums or, you know, an executive order. like, so what's an executive order? Yeah, and executive order typically is an explanation for how the president is going to enforce or apply a law or an explanation for how the president is going to is going to distribute executive power or use executive power. So, for example, is, I believe it was, I think it was President Kennedy bolstered by President Johnson who had affirmative action executive orders. And the notion was, yeah, we're going to require affirmative action for government contractors. The notion being the president is clearly responsible for contracting with the federal government. mean, that's something that is part of the executive power. So I'm telling you how I'm going to think about this particular area. And the way I'm gonna do it is to say, hey, if you are contracting with the federal government, you've got to engage in affirmative action. What affirmative action? That's another story, but you've got to engage in affirmative action. So the order in and of itself is not necessarily a problem. It's actually quite helpful because there are gaps in legislation. That is, the legislature writes a piece of legislation, the president has to enforce it and execute it. And it's helpful, can be helpful to hear how the president is going to enforce this particular rule or law. It allows people to To say, well this is consistent with the way the president's going to enforce the law. That's cool. So they're not bad. It's just when they start to go off the rails that you say, really? Really? This is how you're going to do this? And I think it's fair to say that President Trump's position is any executive order that's out there, I can pull back because I've got the right to issue executive orders and explain how I'm going to enforce things. Indeed, his DEI executive order essentially said, well, I'm going to enforce the Supreme Court's affirmative action decision from a couple of years ago. And the way I interpret that ruling is don't have DEI. Well, that's not quite what the... what the opinion said. mean, the opinion was pretty bad, but that's not quite what it said. But that's his position on how he's going to interpret it and therefore how he's going to deal with DEI. Got it. Does the Trump v USA immunity ruling play at all with all the lawsuits that are being lobbied towards all these different executive orders and actions and whatnot? Couldn't the Supreme Court just say, hey, we already told you, hey, it's an executive function. He gets to do whatever he wants kind of thing. They haven't gone quite that far. They have not bought the unitary executive principle fully. They keep sort of dipping their toe in the water of it. But they are giving the executive more latitude. So we'll see when they stand up and say, okay, enough's enough. Because... Because here's part of the structure. Part of the structure is we recognize that the executive, at least my position, and I get this not because I just feel this way, but the structure of government. Structure of government is that the legislature tells us what the law is going to is and what the policy is. The president is supposed to execute the legislature's policies. When the executive decides, no, no, no, I'm gonna take it on my own to do what I feel like doing, that strikes me as being inconsistent with the structure that's been laid out. The problem you run into is, who's there to stop the executive? Well, the legislature in theory can pass more laws, but of course, if the Supreme Court says, no, no, you can't pass those laws because that affects the executive's power and authority, you got a problem. By the same token, if the Supreme Court says, yeah, the law is the law and the executive has to follow it and the executive says, yeah, what are going to do about it? That's another problem. So our structure of checks and balances exists, but they only exist if people are willing to say, yes, that's a legitimate check, that's a legitimate balance, this is a legitimate separation of powers. That's where things get kind of interesting. Think about the Commander-in-Chief power. Now the Commander-in-Chief power is a power that is located with the executive, but you still have to ask the question, what powers are Commander-in-Chief powers versus powers that the Congress has said don't involve the Commander-in-Chief power because the legislation says it doesn't. Those are the interactions. And one question is, how far will President Trump push? And who's going to stand up? And if you have a supplicant Congress, the likelihood that they're going to push back is pretty slender. And if you have a Supreme Court, many of whom served in the executive branch, so they kind of like the concept of more executive power, you may be looking at a situation where the executive grabs onto tons more power and that's why you have some folks saying, hey, the executive starts to look like a king pretty quickly because the executive has an awful lot of power and has immunity. This is a problem. Well, That's a concern. Yeah. Well, you know, mean, his FBI nominee wrote a book that said that Trump was a king. I think it was a three book series, Trump as King, Cash Patel I'm talking about. Hey, Cash Patel was a University of Richmond undergraduate, so there's not so much we can say about Cash, right? Not a former student of mine, because I don't teach undergraduates, but he was a U of R undergrad. So you could think about having him on the show and asking him, hey, what are you thinking? It'd be like the worst thing that he could do is like wear some sort of like, you know, swag from the college and be like, yeah, I went here. Then all of a sudden, like you have a bunch of news crews, you know, staked out in front of your office or something like that. what are you going to do? We have lots of alums who've done some interesting stuff. So, we don't have a whole lot of time left, but I have to ask you about the Empowerment Act and how that applies to some of the freeze of payments that Trump's done. Yeah, the impoundment act in a nutshell essentially says, look, when the Congress has allocated an appropriate money, it's up to the president to spend it. Now, the impoundment act popped up or was passed in 1974 in the wake of Nixon. suggesting that he should have the power to simply decline to spend money that had been appropriate. Now, there are situations when you say, okay, that is, let's assume that when the president went to Congress and said, I need $50 billion for this program, let's assume the president thought that $50 billion was necessary. So $50 billion was appropriated. Well, it turns out, oh, we can solve this problem for $35 billion. Yes, it's crazy to tell the president, you've got to spend $15 billion on something that's already solved. But in that situation, Congress can do, the president can say, look, we don't need the extra $15 billion, and Congress can say, fine, we'll pull it back. That's not the same as a situation where Congress says, here's $50 billion to solve a problem. And the president says, yeah, I just don't feel like spending that kind of money because I don't like the problem you're trying to fix. So for example, I know you all allocated X millions of dollars for foreign aid through USAID, but I don't believe in foreign aid. So I'm going to pull it back. It's like, whoa, dude, that's not for you to decide. The legislature has determined, the legislature has set the policy and the legislature has appropriated the money. We're not asking you whether you want to spend the money. We're telling you, spend it in an appropriate fashion. But we're not telling you what you can do. Here's the example that I give when I talk to federal officials about impoundment. Assume that you have a child who you are having babysat. Or someone's babysitting one of your children. That's the way most normal people would say it. Someone's babysitting your child. Sorry about that. and you say, we're going out, here's 20 bucks for dinner, buy a pizza for the kid, buy a pizza for yourself, we're going out, we'll see you when you come back. When you come back, if the babysitter says, here's the $20, I decided we were going to fast for the night, you'd be livid. I gave you the $20 to feed yourself and the child. That's what I gave it to you for. If I had wanted the $20, I wouldn't have given it to you. Go do what I asked you to do. It's not for you to decide not to do. That's what the Empowerment Act is really about. It's about telling the president, we don't care what you want, this is appropriated money. Go solve the problem with the money that we have given you and don't refuse to spend money because you just don't feel like it or you don't like what we're going after. In the same way that if money were allocated, say, for various abortion services, recognizing that's a complete hypothetical, but if they were, And the president said, I don't want to spend money on that. The response would be, we don't care. Imagine money was allocated for therapeutic abortions for military personnel, for example. You can imagine a president saying, I don't want to spend that money on that. And the response is, yeah, guess what? We don't care. We care about our fighting forces, and this will help them. So spend the money on it. That's what's going on with the Empowerment Act. So the idea of checks, balances, and powers, clearly the legislature has the power to allocate. In fact, the president can't spend money unless the money has been appropriated. So part of the policy is saying, here's what we want you to do, here's the money, go execute. And when that's you're told to do, The Anti-Empowerment Act says go do it unless you've got these specific circumstances. And none of the circumstances apply in this particular situation. So that's what's going on. if I recall, Biden did something similar to that with like wall money, where it's like, think he filled out all the proper government forms, you know, to like say that he, you know, wasn't going to spend the money. I don't know if you're familiar with that or not. And so I'd love to hear your thoughts on it. Yeah, I can't go deeply to that. My understanding is that he did not want to spend the money, but that he went through the process. there's certainly going to be some question about the process and whether something is a reasonable impoundment or not, and whether you've gone to Congress to say, hey, you all should pull this money back or what have you. My understanding is that this with President Trump is just him saying, I don't feel like this and I'm not going to check the boxes or anything along those lines. I just have the power to do it and anybody who tells me that I don't go to Supreme Court, I'll bet they'll find the impoundment act in this manner unconstitutional. It's like, really dude? Every law out there that you don't like is unconstitutional? That's how it works? And if you believe in the unitary executive theory and you believe that this is executive stuff, That's a tough one. People used to say that we threw around the term unconstitutional too often. Well, folks are just throwing around now like it's nothing. If I don't like it, it's unconstitutional. Okay, guess everything's gonna have to go to the courts, and that's a problem. Yeah, yeah, it is kind of interesting. I asked a friend of mine, Ashley, just a few hours ago, what their definition was for something being constitutional or unconstitutional. I'm curious, I've never asked that question to a constitutional scholar before. So like, is there a definition for what is considered constitutional? No. I say, that's, here's what I mean by that is, you can argue that something's unconstitutional when it is fundamentally inconsistent with the principles underlying the Constitution. Or you can say it's only unconstitutional when it violates a specific provision of the Constitution. And those are different, so I'll give you an example of that. The Constitution says that the Senate has to give advice and consent after the President nominates the Supreme Court of Justice. Now, let's assume the Senate says we're not meeting, we're not gonna talk to the person, we're not gonna give them a hearing, no nothing, a la what they did with Merrick Garland. Some people would argue that's unconstitutional because it's inconsistent with the notion of giving advice and consent. Other people would say, no, it's not. The Senate is not required to say yes or no. The president isn't allowed to appoint until the Senate says yes. So how you view constitutional or unconstitutional is a tough question. in the same way that we might say, well, is there a definition of behaviors that are un-Christian? Good point, yeah. is like, well, I mean, I think there's some that we would look at and say, ooh, that was unchristian. But there are a whole bunch that are in that gray area. And that's where it gets really tough when you say, does it have to be a violation of something explicit that Jesus said? Or does it have to be something that is inconsistent with his general principles that were supposed to... treat our neighbor as ourself and we're supposed to love the Lord with all our heart, all our mind and all our soul. Well that's an interesting question in terms of what's in the gray area and what's not. And indeed the issue may shift depending on who you talk to. So that's kind of the way that I look at it. You can take a very narrow position on what qualifies as unconstitutional or a very broad one. If you take a narrow one and you say it has to violate the text of the Constitution, then not a whole lot of things are unconstitutional. Because there are a lot of places where the text is quite unclear. If on the other hand you say, look, does it violate the principles that underlie the Constitution? Then a lot more things may be unconstitutional. Now, there's also the question of, okay, it's unconstitutional, what do do about it? In the same way that if you say, you know, You know, Brother Will, I'll tell you, what you did was an unchristian act. And I imagine your response may well be either, it wasn't, or, okay, fine, I'll do better. But what we're not gonna do, what we're not gonna do is walk up to you and say, you know, that was unconstitutional, therefore you owe me a couple hundred thousand dollars. So we could say some of the same things about the Constitution is, okay, fine. So President Trump did something unconstitutional, what are you gonna do about it? Well, maybe nothing. Or maybe you go and you try to reverse what he did. But those are questions that right now are just out there. And they're on the table, particularly when the crew that typically gets the final word on constitutionality is the Supreme Court, which many of us look at and say, oof. They seem to be doing a whole lot more politics than law these days, which is, which, which really is actually not true. But there are a couple of cases each year where you look at the reasoning and you say, huh, that reasoning kind of looks more political than legal. But we know we have to deal, we have to live with it because they're still the supreme. Yeah, you know, I asked this question to we spoke with another constitutional scholar. He's teaching undergrad this year from Nebraska, Eric Berger. Great guy. You know, I we had a little fun because I'm just like, like, is it is it fun or frustrating to to teach the Constitution in law when Trump is in office? Hahaha! And he was like, well, I teach undergrad. know, like some of our, you know, assignments are kind of already there, you know, and stuff. But given that you teach grads or graduates, like, how does teaching this stuff like differ from like the Biden time and, you know, now in the Trump time? Yeah, well I'll tell you this. I teach voting rights. I don't teach constitutional law as that discipline, but what I do teach though is the Constitution to lots of folks outside of the law school. And I make that distinction because what's quite interesting slash frustrating is teaching the Constitution because people think that they've got a sense of what's in the Constitution. And when you explain it to them and then explain to them how the power structures are shifting, they can kind of freak out a little bit because they realize there's not much there. Now, when we talk about constitutional law, when I write about it and do some teaching in terms of constitutional law in voting rights, for example, figuring out what law is has gotten difficult because we've always talked about what law is by talking about precedent and what flows logically from the last case that was decided. And as the Supreme Court keeps throwing us curveballs and as the president keeps saying that's not law, it's unconstitutional, you really get knocked off balance in terms of saying, well, What's law? It starts to feel more like it's about power and not law. And that's where things can get can get kind of shaky. It's hard to define something as truly law when law typically means the thing that we will adhere to moving forward. Right? I mean, that's based on the concept is if law is the things that we've agreed to adhere to moving forward, then when people say, I'm going to ignore that thing and not adhere to it when I don't like it, and the people who are supposed to tell us what the law is say, okay, then you lose the sense of what qualifies as law. That is very disorienting. And that can get kind of hard, particularly when youngsters And by youngsters, I'm including folks who are not actually youngsters anymore. When they say, and I'm not saying that in a negative way, I'm just saying that I'm old. Is that when folks who are 30 years younger than I am say, with all the honesty in the world. Well, what's law and you've really explained something that doesn't make sense, the response is, yeah, you're probably right. What I've described to you is how I was taught the law and how we were taught to respect the law and how we were told that the way you change law is to go through Congress or to go through your state legislature and then they'll change the law. It wasn't elect somebody who I like who says that they're to take a machete to the law and that's how you change law. That's not how we thought about it. Now, the president always has some latitude to put his or her own proposals into play. So I'm not suggesting that the president never opines on the law. But the idea that everything is up for grabs because this is a government that runs on executive power, that's not what we have had in the past. And that's just different. So that's something that's new and can be a little frustrating. We do the best we can in terms of calling it law, but we'll see whether folks continue to believe in law as opposed to power over the next few years. Yeah, it was funny because so when I was talking to Eric, was talking about, I imagined a situation where just like, yeah, absolutely, presidents can never have immunity. And you design a whole class around it. And then all of a sudden, Trump v USA drops and you're like, okay, so everybody gets an A? Yes. So here's what I know we're short on time. Here's what I will throw out as being something that's a little bit of a brain twister that folks may look at and go, man, we thought you meant the exact opposite. The president has the right to pardon people. OK. Let's assume that Congress drafts a statute, a criminal statute that says any president who pardons someone after an election. that they lose shall be guilty of a felony. Hmm. Is that an acceptable statute? Probably not. Exactly. And the argument is the reason why it's not is because the president in fact has been given the pardon power under the Constitution. So the mere fact that the legislature passed a piece of legislation doesn't mean that that piece of legislation is constitutional. Now recognize that is the form of the argument in US versus Trump. Trump's position is any official act that I take that I have been given the right to take under the Constitution cannot be criminalized by the legislature. Now, in that case, we go, okay, that's fair. But now let's put in a slightly different statute. Congress says any president who takes a bribe to pardon somebody is guilty of a felony. I think we would go, well, that's okay. You can't take a bribe in order to... But the position that I think that President Trump would take is, no, I've got the ultimate right to issue a pardon for whatever reason I want, therefore the legislation doesn't qualify. Now, I am sure that the current Supreme Court would say that a statute that says you can't take a bribe for a pardon, I am sure they would say that that is perfectly constitutional. The problem is you couldn't tell that by reading Trump versus US. And that's the danger. You read Trump versus US and you say, well, any power that's been given to the president, the president can exercise it and the president is immune from criminal prosecution. But they can't possibly mean that. They just can't. Well, the Supreme Court would just set up a three-part test to define what a bribe is. Yes. Yes. And I teach white collar crime. They absolutely would. But that's what I mean when I say what they say, you kind of go, OK, I understand where they're coming from. But President Trump takes it to its illogical extreme and says, that means I can do anything I want. And you're going, dude, that's not quite what they said. They weren't clear. Mm-hmm. quite what they said. But that's his take with, I think that's his take with Birthright Citizenship, that's his take with DEI, that's his take with a lot of things. And that's where things get kind of, that's his take with I can send troops, I can send you, I can send army troops down to the border. Dude. Dude. Well, Professor Chambers, thank you so much for spending some time with us. I get a sense, just predicting here, that I will be talking to you again. Probably at some point in time in the future. So yeah, thanks. Always a pleasure to chat with you. Hey, it's big fun. Great talking to you, Will. Yeah, ditto. And to our audience, thanks again for joining us. And as always, keep your conversations not right or left, but up. And we'll see you next time. Take care.