Apparently President Trump is considering doing away with birthright citizenship – or anchor babies – via executive order, thereby reversing interpretation of the 14th amendment to the Constitution.
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.
Stella's Place 
More:
But others suggest the president may have an opening.
Jon Feere, a senior adviser at Immigration and Customs Enforcement, is among those who has long argued that that the president could limit the citizenship clause through executive action.
“A president could direct his agencies to fall in line with his interpretation of the Supreme Court’s rulings, which are arguably limited to children of permanently domiciled immigrants (the court has never squarely ruled on children born to tourists or illegal aliens). He could direct his agencies to issue Social Security numbers and passports only to newborns who have at least one parent who is a citizen or permanently domiciled immigrant,” he wrote in 2015 in an op-ed in the Hill.
https://townhall.com/news/politics-elections/2018/10/30/trump-end-birthright-citizenship-for-some-usborn-babies-n2533227
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In 1868, the 14th Amendment was passed to ensure that the newly freed slaves could not be returned to slavery by some legal chicanery. Between 1868 and 1965, birthright citizenship did not exist unless one parent was a US Citizen.
Trump can reverse this practice because President Johnson created birthright citizenship. President Johnson erred when he took and used the 14th Amendment in a manner for which it was not intended.
What one president does, another president can undo.
[{ I can write more, but I will stop here unless someone wants more details. }]
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I did not check the box to be notified of replies to my comment. If that can be undone, pease do.
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You are in control of your notifications. I can’t change them for you. Click on your icon at the top right of the page, and click on “Notifications”.
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I’m not convinced that President Trump can do this by Executive Order, BUT I do think that the Supreme Court should rule on the interpretation.
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Yes, the court needs to tackle this. Is this the same law that effects whether or not Cruz is an American citizen? If I recall, it was arguments about whether both parents had to be citizens. You mentioned that above and that got me wondering if the 2 arguments were based on the same law. Thanks for your hard work on this one Stella. Very educational. I fall into the camp that he cannot do this, but if he wants to he will, and as you said, let the courts finally rule on this.
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Cruz was not Constitutionally eligible to be President. Neither were 0bama, Jindal, or Rubio. You get the citizenship based on your parent’s status. Cruz was born in Canada, but Cruz had one Citizen parent, so he is a US Citizen. But his mother would have had to do some paperwork when she brought him to the US.
McCain was the first one to have his Citizenship called into question. However, both his parents were US Citizens and he was born on a US Naval Base. Even if he had been born in a civilian hospital, in a foreign hospital, he would still have been a US Citizen and eligible to be president.
Somethings that were overlooked when people looked at 0bama’s citizenship. One was that his father was a foreign national, a citizen of the United Kingdom and/or Kenya. Everyone was hung up on his birth location, not his parentage. I believe he was born in Kenya and that his mother did not do the necessary paperwork when she took him to Hawaii.
I started looking into this citizenship bit in 2001 when Hamdi was captured in Afghanistan. The rules that applied to him were not applied to my cousins. I don’t want to get sidetracked on him and get too far from the original post.
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I disagree on Cruz, but have had this discussion many times and don’t wish to rehash it. The Supreme Court needs to settle this once and for all.
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I am Coemgn. Coemgn is Irish Gaelic for Kevin. It somehow connected me to an old account that I had forgotten about, even though I logged in with a new accout.
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Welcome Coemgn 🙂 !
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Ah! I see you are Kevin from the post above these, well, welcome back 🙃.
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Kevin,
“Between 1868 and 1965, birthright citizenship did not exist unless one parent was a US Citizen.”
Your explanation is the way I learned about citizenship when I was in school.
We had an excellent US History teacher. His name was Mr. Davidson. Of course I couldn’t possibly remember what year it was because I’m a lady.
I also remember my sister-in-law was an RN in a San Diego, CA, hospital just a few miles north of the US/Mexico border in the early 70’s. Pregnant women would sneak across the border and wait in the parking lot until they were in hard labor. Then they would go into the emergency room and ask for delivery assistance. Their labor would always be too far advanced to turn them away.
At the time that was happening, I don’t think we realized the changes to birth certificate issuance. We thought the women wanted delivery in a clean, safe environment. As I recall my sister-in-law was talking more about the fact the hospital and doctors would never be able to recover the cost.
This was a really interesting point about the change in application of policy. I had never seriously sat down and tried to figure out why what I learned in school does not agree with what is happening in today’s world. Thank you for posting the background.
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I would be interested in more details on this fascinating topic & thanks for what you shared!
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I just posted a couple of replies, if you could read them, it would save space on this discussion thread.
I feel the Elk case was wrongly decided because Indians are citizens of their Indian nation. Elk was not any Tribal Rolls, so he should have been a citizen since he was born in the US.
At the time the Constitution was adopted, a person was a citizen of their state, and as such, they were a citizen of the US.
I am looking for some information and will get back to you when I get it organized. I copied a 93-page document on why 0bama was not Constitutionally eligible to be president. I went to it and clicked on a link and I get a car dealership with the same name as the author. That is a scholarly document, but obviously, it offended someone’s sensibilities. That is one of my complaints about the internet. Here today and gone tomorrow
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Thanks…I’ll look for your replies. I studied the Obama apparently ineligible issues quite extensively too. In fact during the entire 8 year usurpation I never referred to him as “President” without quotations…It’s amazing that with so many eligibility lawsuits & the Cold Case Posse findings of Joe Arpaio’s team that there was zero traction on this issue except seemingly on the “fringe” right wing sites, etc–hmm…It seems that we’re nearly at the place where there is no “rule of law” & given how Hilary & the Deep State have pretty much seemed to skate (even in the midst of “provable” “treason”) it remains quite alarming…
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Kevin/Coemgn
I was probably one of those posting one those “fringe” or “right-wing” sites. However, I began posting the same material as I posted above in July 2006 on any site discussing this issue. I did not comment on any post unrelated to this issue, I will not hijack a post. Joe Arpaio and the Cold Case Posse wanted to react to a subpoena by a Grand Jury or Congress.
I believe Hillary’s Oppositional Research Team uncovered this information but knew she would be accused of racism, splitting the Democrat party, or everything else and sought to avoid that unpleasantness. When she conceded in June, I thought this was strange because she is a fighter and this was out of character. In July, before the Democrat nominating convention, Philip Berg, a Democrat from Pensylvania initiated a lawsuit in Federal Court stating what I did above and wanted the Court to order the DNC to provide evidence of his eligibility before nominating him. The judge held off as long as he could before ruling Berg had no standing to bring the suit. The election was over and an Appellate Court would not accept the case. Hillary conceded because she knew Berg would bring the suit and a Federal judge would order the documents produced. It didn’t happen.
0bama spent $4 million dollars to avoid producing his birth certificate in court. Why? Then people like me would have shut up. 0bama then posts a birth certificate online, a document many say was forged and listed reasons. I do not believe he has a birth certificate because you can get by with that in Kenya, but not the US. Moslems do not like birth certificates.
I am not a birther. I was months ahead of anyone else making that same claim. I will skip my usual comment.
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ABC News
NEW: Sen. Lindsey Graham: “Finally, a president willing to take on this absurd policy of birthright citizenship…I plan to introduce legislation along the same lines as the proposed executive order from President Trump.”
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When I see statements like this from Senator Graham, I think who are you and what have you done with the man we use to see vote right along with Senator McCain?
Tonight I went out and checked the date of Senator Graham’s next reelection campaign. Sure enough it is 2020. If he doesn’t support President Trump, the Donald will mention it in every Podunk town from DC to Florida and possibly coast to coast. The people in SC will all know about it and all their relatives no matter the state.
BTW, I am thankful the Senator is supporting the President whether or not it is a permanent change of heart. If ultimately it is decided that birth question has to go through Congress it will be good to have another Senator in the POTUS corner. W and The Donald have not always been able to depend on that from this Senator.
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Sorry I meant to put this on the main thread.
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A blast from the past.
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Fascinating how the phrase, “subject to the jurisdiction thereof” is conveniently left out of most discussions I’ve seen of this topic. Seems clear as a bell to me.
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I have one question, If a 17-year-old male foreign national enters the US illegally, is he required to register with the Selective Service when he is 18 years old.
If the answer is “No” then he is not subject to the jurisdiction thereof.
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