Of course, it isn’t only illegal aliens from the western hemisphere that are a concern where birthright citizenship is concerned, but the increasing amount of birth tourism. Russia and China are sources for many pregnant tourists seeking an easy way to U.S. citizenship for their children and, ultimately, themselves.
FOX NEWS reports:
President Trump said in a newly released interview he plans to sign an executive order ending so-called “birthright citizenship” for babies of non-citizens born on U.S. soil — a move that would mark a major overhaul of immigration policy and trigger an almost-certain legal battle.
Birthright citizenship allows any baby born on U.S. soil to automatically be a U.S. citizen…
Under current policy, anyone born in the U.S. – regardless of whether they are delivered by a non-citizen or undocumented immigrant – is considered a citizen. The interpretation has been blamed for so-called ‘birth tourism’ and chain migration.
Immediately there are several questions that arise:
- Can the President legally do this.
- Will there be a legal challenge (almost certainly).
- Could this end up at the Supreme Court, where a reinterpretation of the 14th amendment might take place.
- How does this announcement affect the mid-term elections.
Let’s first look at the 14th amendment, Section 1, and when and why it was written.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the section under question, and the part that I have bolded is the key phrase.
The 14th amendment is one of the “Reconstruction Amendments”, passed after the Civil War (1868). The amendment addresses citizenship rights and equal protection of the laws and was added to our Constitution in response to issues related to former slaves following the Civil War. It overruled the Supreme Court’s Dred Scott decision, that black people were not citizens, nor could they become citizens or enjoy the rights such citizenship bestows.
More clarity: The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.
I would argue, as many do (including the article linked above) that:
The phrase “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship…
The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.
Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called “Slaughter-House cases” [83 US 36 (1873) and 112 US 94 (1884)]13. In the 1884 Elk v.Wilkins case12, the phrase “subject to its jurisdiction” was interpreted to exclude “children of ministers, consuls, and citizens of foreign states born within the United States.” In Elk, the American Indian claimant was considered not an American citizen because the law required him to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”
The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe “direct and immediate allegiance” to the U.S. and be “completely subject” to its jurisdiction. In other words, they must be United States citizens.
It is not clear that the President can do away with birthright citizenship by Executive Order. I personally do not believe that he can. Congress could do so, but has declined to do that up until now.
I imagine that there will be an immediate court challenge to any such move by the President. Perhaps that is a good thing, perhaps not. The President is gambling on the fact that the Supreme Court would agree with him, that birthright citizenship should be abolished, and the 14th amendment has been incorrectly interpreted to allow it.
I also believe that an action by President Trump via Executive Order would be a good move, politically speaking, at this time of concern about illegal immigration and prior to the midterm elections.
Consider that many countries who once had similar policies/laws, have since abolished them. The following are among the nations repealing Birthright Citizenship in recent years:
- Australia (2007)
- New Zealand (2005)
- Ireland (2005)
- France (1993)
- India (1987)
- Malta (1989)
- UK (1983)
- Portugal (1981)
Canada and the United States are the only developed nations in the world to still offer Birthright Citizenship to tourists and illegal aliens.
The time has come to force this issue out into the light of public scrutiny in the United States.