Published November 2, 2018
The experts have already chimed in to advise that his plan is contrary to basic constitutional law, but that has not stopped Donald Trump from announcing in recent days that he will issue an executive order putting a halt to birthright citizenship, i.e. the rule that all children born in the U.S., with few exceptions, are born as U.S. citizens. Most see the President’s announcement as a purely political stunt in order to bolster support among his base to vote Republican in the coming midterm elections and to maximize their chances of maintaining control of Congress. Legal experts almost universally say the plan is dead on arrival, as it is up against 120 years of legal precedent as well as the plain language of the U.S. constitution. With few exceptions, experts have concluded that the only way birthright citizenship can be reversed is by way of a new constitutional amendment.
The 14th amendment reads, in part, “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.” The accepted meaning of this provision is that all people born in the U.S. no matter the citizenship or legal status of the parent, are considered to be U.S. citizens, and are given all of the rights and privileges of U.S. citizenship. The most common exception to this rule is that children born in the U.S. to a foreign diplomat do not acquire U.S. citizenship at birth, as they are considered “subject to the jurisdiction thereof”.
It is precisely the “subject to the jurisdiction thereof” provision that Trump believes provides a foundation for his initiative. He claims that the words “subject to the jurisdiction thereof” refers to individuals who have complete political allegiance to America, which would exclude non-U.S. citizens, including undocumented immigrants.
Birthright citizenship of course is not universal, as many countries around the world do not generously offer citizenship as the U.S. does, to all who are born there and regardless of their parents’ citizenship. The specifics of Trump’s executive order have not been revealed, and the extent to which he is serious about seeing his plan through will be known in the near term. Without question though, any version of an executive order of this kind will be the subject of a federal court challenge and will ultimately have its constitutionality decided by the U.S. Supreme Court, just like the various executive orders issued to restrict travel to the U.S. from certain designated Muslim countries.
The U.S. Supreme Court in its 1898 opinion in United States v. Wong Kim Ark, spoke on this very issue, clarifying how the “subject to the jurisdiction thereof” language was intended to exclude only Native Americans born on tribal lands, children of foreign diplomats and the children of “enemy occupiers”.
Again, whether or not the executive order actually gets issued, or becomes the subject of federal court litigation is not certain, although just by announcing the possibility of such an order, it seems the President will have accomplished his primary goal, i.e. getting his base revved up and motivated.
PUBLISHED November 2, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois