Can Trump end birthright citizenship with an executive order?
Well, he can certainly try:
It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.
When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.”
The Axios article then goes on to provide a link to the fact that “more than 30 countries, most in the Western Hemisphere, provide birthright citizenship.” But what is left out of the Axios piece is the fact that those other countries are not first-world countries, except for Canada. It’s not as though Honduras has a big problem with what’s known as “birth tourism,” or with many thousands of people forming caravans to come to that country illegally.
The developed countries of Europe do not grant birthright citizenship to people born there unless (for example, in many of them) “at least one parent is a citizen of the country or a legal permanent resident who has lived in the country for several years.” In fact:
No European country presently grants unconditional birthright citizenship; however, most countries in the Americas, e.g., the United States, Canada, Mexico, Argentina, and Brazil do so. In Africa, Lesotho and Tanzania grant unconditional birthright citizenship,[citation needed] and so do in the Asian-Pacific region Fiji, Pakistan, and Tuvalu.
Other countries such as Austraila do not grant it either. Basically, only Canada of all the developed countries shares our devotion to birthright citizenship.
I’ve written rather extensively about the birthright citizenship question, in this post as well as this one. The issue is hardly new, and what Trump said recently to Axios is not new either, unless the news is that very soon he’s really going to announce this by executive order. I tend to doubt that’s going to be happening all that soon, but Trump has surprised me before.
Here’s what I wrote on that issue back in July, and I think it bears repeating:
I want to add that Anton [in this article] suggested Trump do this [end birthright citizenship] via executive order, and I don’t agree with that. Of course, Trump could try it and there would immediately be a court challenge. I believe he would probably lose that challenge, but it would compel SCOTUS to clarify the issue, a process which has its own merits.
I believe, however, that the better approach would be a statute passed by Congress. This would almost certainly not happen, for the same reasons that the previous bill introduced by Vitter (I have discussed Vitter’s proposed bill in my 2014 post) did not go anywhere. If one were to be passed, however, it would also be challenged and would almost certainly ultimately go to the Court for clarification.
The safest route would be a constitutional amendment. This is quite difficult to accomplish, of course, but it would be the answer to those who believe that the Constitution’s 14th Amendment is properly read as requiring birthright citizenship even for the children of illegal aliens and/or birth tourists.
So I think it would end up in the Supreme Court, unless the Amendment route is followed. The legal issues are rather complex, and a matter of interpretation of the Fourteenth Amendment’s “under the jurisdiction” phrase. Here’s Anton’s argument that the Constitution does not call for birthright citizenship:
You have to read the whole 14th Amendment. There’s a clause in the middle that people ignore or they misinterpret — “subject to the jurisdiction thereof” — ‘thereof’ meaning of the United States. What they’re saying is, if you’re born on US soil subject to the jurisdiction of the United States, meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship. If you’re here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.
If you read the debate about the ratification of the 14th amendment, all the senators who are discussing what this is meant to do and what it means are very clear on this point; I tried to point that out. I expected the left would blow up and get angry which they did. What I didn’t expect, at least not to this extent, and what was very disappointing was how angry the so-called conservative intellectuals got with me, and they essentially said any opposition to birthright citizenship is racist and evil and un-American…
Anton advanced a more detailed version of his argument in this article.
As I said, I’m not at all sure this is imminent. Trump may just be floating the idea at the moment.
[ADDENDUM: And Lindsay Graham says he will introduce a bill on this:
Republican Sen. Lindsey Graham said he plans on introducing birthright citizenship legislation sometime after the elections. The senator applauded the president’s planned move saying in a statement: “Finally, a president willing to take on this absurd policy of birthright citizenship.”
That’s the role Vitter used to take.]
I tend to think this is a kind of pre-election “Let’s run it up the progressives’ flagpole and see how many heads explode” statement. Anything that promotes sealing the borders and making more immigration more difficult is a win for the Trump side of the ledger.
Alexander the Great found the correct solution to a Gordion Knot.
Trump’s on the right path.
By issuing an EO he would trigger the chain of events that figures to end in conventional leglislation or a Constitutional Amendment.
Without an EO, neither is going to even get rolling.
Perfection is going to kill off the good-enough.
The least ambiguous interpretation (and to avoid issues of infidelity) would be a baby of both a citizen mother and citizen father, and everyone else is eligible for naturalization as Congress determines.
This is also a message to the caravan.
Cap’n Rusty:
Good point, although I’m not sure it will get enough publicity to reach them.
I agree that ending birthright citizenship could not be ended by Executive Order, but the US Citizenship and Immigration Service could issue a Temporary and Proposed Regulation taking the position that the 14th Amendment does not apply to persons born or persons in the US illegally. Obviously, the validity of that regulation would be immediately litigated.
I don’t think a Constitutional Amendment should be necessary, since Congress, under its power to “establish a uniform Rule of Naturalization” could pass a statute providing no birthright citizenship for illegal aliens, and it should (IMHO) survive constitutional scrutiny. As I understand it, the authors of the 14th Amendment had in mind the children of diplomats and Indians. The Indian part has since been dropped, I assume by statute, and Amerindians are now automatically citizens at birth. That indicates that Congress does have the power to interpret the 14th.
Unfortunately, however, the Chinese and other “birth hotels” are making so much money that they can afford to bribe (excuse me, “lobby”) enough Congresspersons to prevent such a bill passing.
Birthright citizenship does not apply to illegal aliens. In the debate on the 14th Amendment Senator Jacob Howard (R-MI) stated, “Every person born within the limits of the United States, and subject to their jurisdiction is, by virtue of natural law and national law, a citizen of the [United States]. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers, accredited to the government of the United States, but will include every other class of persons.”
blert on October 30, 2018 at 3:15 pm at 3:15 pm said:
By issuing an EO he would trigger the chain of events that figures to end in conventional leglislation or a Constitutional Amendment.
Without an EO, neither is going to even get rolling.
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This.
Whenever the Left and the Democrats and their media & judges focus on one of Trump’s actions because “he can’t do that !!” it gets more attention, and the LIVs who otherwise have no prior exposure to the problem suddenly realize that there is something that needs fixing, and that Trump’s side is not necessarily the wrong one.
IMO, the spectacle of just one or two judges individually trying to dictate administration policy on visas and travel opened a few eyes to the way in which Democrats refuse to admit that there are even any problems with SOME of the people coming from SOME countries.
Personally, I think it is quite reasonable, at this stage in history, to limit citizenship to people born of at least one citizen or legal permanent resident.
If both parents are still legally citizens of another country, and especially if they take the kid back home to raise, then NO citizenship in the USA for them.
I don’t know if Trump will ultimately be successful in terminating birth right citizenship, but he should try, and it should be terminated.
Our immigration system is obviously not serving the citizens of the U.S. well, nor our country, it’s interests, or it’s future, and the current ineffective system–leaking like a sieve–is being shamelessly and constantly gamed.
If we don’t fix this, U.S. citizenship won’t be worth a damn, and any grifter with a sob story and a script of correct answers written by an immigration lawyer or some advocacy organization will continue to be able to, in effect, waltz in uninvited, sit down (again uninvited) at our national table, and expect to be waited on and provided for.
Enough!
Moreover, as one of the first steps in shutting down this misguided policy, President Trump should put the Chinese and other “birth clinics” out of business, permanently.
Below is my comment from 2014. I agree with myself! Trump is forcing the issue like I wanted.
“This needs to be made a big issue in the November elections;,especially in Senate races.
Pass the bill and force Obama to veto.
Make Hillary take a stand. For once.”
Y’all realize, of course, that as our Immigration laws stand today, if your go to a “port of entry” and present a “credible” claim for asylum, you get a brief hearing before a U.S. immigration judge, and in a few days you are kicked loose and disappear into our population, with a paper giving you the court date–many months in the future–when you are to appear for a full blown hearing of the merits of your claim for asylum to stay in this country.
Realistically speaking, what percentage of those people ever show up for their hearings? Ten percent, fifteen percent, less?
I am just fine with legal immigration, particularly if the immigrant has skills and talents that could benefit this country, and he can support himself.
Frankly, if I was one of those prospective immigrants to this country who had scraped together the money to hire an immigration lawyer, who had filled out the pile of forms, gone through all sorts of interviews, and was waiting in line for his turn to enter this country legally, I’d be furious at all the line jumpers who just breezed on by all the “suckers” in line like him who were trying to enter the right way, snuck across the border, and was then “free as a bird,” and living the good life here in the good ol’ US of A–and probably on our taxpayer’s dime.
Con law prof John Eastman said that POTUS could order the State Dept to stop issuing passports to the children of foreign diplomats born in the US. I have read that there are other policies that repeat the falsehood of birthright citizenship. That, too, could be resolved by EO.
The best way to bring this up to SCOTUS is if Graham’s proposed bill passes. But if the Dems lose the House, no law passes.
Neo, I think word of Trump’s proposal will get to the caravan and quite quickly. I’ve read reports that make it appear that people in the caravan are in regular contact with friends and family back home and being kept informed of possible actions by the US when they reach our border. Certainly the organizers seem well up on current proposals, the troops being sent south for example.
Three cheers for Trump forcing Congress to do their jobs and atleast appear to take a stand if not yet cast a vote.
“Good point, although I’m not sure it will get enough publicity to reach them.”
Are you familiar with leaflet drops?
Birthright citizenship for the children of illegal aliens is like having a law that makes robbing a bank illegal but allows the robbers to keep the proceeds of their robbery.
As I understand it, the 14th Amendment was crafted with a very specific purpose in mind, and that was to make sure that recently freed slaves were guaranteed to be legal U.S. citizens. Then, in later years, it became interpreted much more broadly, to cover many more situations and classes of people than it was originally intended to do.
If that is the case, there should probably be a substantial “Legislative history”—a body of contemporary, post Civil War government documents, speeches, and debates in Congress delineating what the intent of the President and those legislators back then was.
Trump should point out and reference this “original intent” of the then President and Congress at every turn.
It’s actually an interesting Constitutional question.
The Court has never ruled on whether “subject to the jurisdiction” of the US means just “subject to its laws” (which would support the current notion of “birthright citizenship) or “subject to its sovereignty” (which would exclude those born in the US, but not to at least one parent who was a US Citizen; this would be ambiguous even as to the child of lawful aliens in the naturalization process, thought the S.C. has ruled in the affirmative on the later). While Congress passes a statute on immigration, it merely restates the Constitutional language. And it is not clear that its authority to control “Naturalization” includes authority to define what citizenship exists as a result of birthright.
The question of historic interpretation cuts both ways – in the past 50-60 years, it has been understood to mean anyone born in the US except for the children of foreign diplomats. Prior to that, however, (and closer to the time of enactment), it was not viewed so expansively – in fact, it clearly did not apply to babies born, say, in Ellis Island.
Which means, its an open, fairly academic, question, and really is something that would need a decision of the Judicial Branch – which, while co-equal, is treated as effectively the “final voice” on Constitutional matters. Trump issuing an EO to limit executive branch actions to what they believe is Constitutional is perfectly within his right – but obviously subject to legal challenge.
To the extent that there is political will to go one way or the other, that’s what elections (or an amendment) would be for.
The Trump Administration crafting and Trump signing an E.O. on birthright citizenship would put this issue–should the Supreme Court decide to take it head on, and not duck it– on the Supreme Court’s agenda, and would, hopefully, serve to get the ball rolling towards getting a definitive answer to the question of what the 14th Amendment means today.
This will pit the “Originalist” members of the court–who, as I understand it, generally believe that the Constitution and it’s individual parts are to be interpreted as the informed, wise, and farsighted Founders, and subsequent legislators, intended them to be, at the time they enacted what they did, and should not change vs. those those Justices who view the Constitution not as a bedrock, eternal statement of principle and truth–guidance for all times and all situations–but, rather, as a “living” mutating, ever changing document, whose meaning should shift and change with the times.
Fascinating post and comments.
The bone I’ll pick with Neo is the notion that because there is a substantial group that doesn’t believe the 14th means what the authors said it meant, then we should pass another Amendment?
It’s similar to the 9th Circuit en banc saying that bearing arms outside of the home is really a privilege that CA bureaucrats can bestow at their pleasure (the Peruta case), in spite of clear language to contrary in the 2nd A. and the Heller decision. So we should pass another amendment stating that “the people have a right to keep and bear arms.” Wait … Admittedly, the 14th issues are much more subtle.
BTW, fabulous take down of Axios, Neo.
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Every time I look at this I learn something new.
The Naturalization Act of 1790 barred the naturalization of any non-white foreigners. Ouch!
Then the 14th A. is ratified in 1868.
The nicknamed “Chinese Exclusion Act” of 1882 specifically barred the immigration and naturalization (explicitly or by inference?) of any Chinese.
Then there was the SCOTUS decision U.S. v. Wong Kim Ark in 1898 with a 6-2 decision. The Wong parents couldn’t be naturalized because of the CEA of 1882 but they were permanent legal immigrants. The SCOTUS rightly thought that there was some type of birthright citizenship because of the 14th, but what type was that? They said the parents were under the jurisdiction.
Now I understand some of the hostility in Congress about the 14th. They could have done anything they wanted before the 14th was ratified, not after.
The way I see it, the acid question is/was could the Wong father have been drafted into the military, if that issue came up?
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My lefty friend and I got into it on who is “under the jurisdiction.” He had spoken to some local cops about a legal foreign visitor who commits a misdemeanor. He claimed the cop would write them up probably using their passport. If they left the country, there would likely be a warrant for them if they came back. So my friend says they are under the jurisdiction.
Then the two of us happened upon two CA sheriff’s deputies working event security, and I got to ask them about my primary point on illegal immigrants. If such a person commits a more serious misdemeanor traffic violation, and their given name is Pancho Villa and they have no license or valid license plate, what happens? Answer: They resolve any immediate threats, and then send them on their way. Not remotely “under the jurisdiction.”
TommyJay:
No, that’s not what I’m saying. I will clarify.
I’m saying that there is a good chance that such a move would be found unconstitutional unless an amendment is passed. That would be the safest way to do it, the most foolproof. I’m not saying it’s necessary.
Trump could do it by executive order, but it will be challenged in the courts. It’s not a bad way to test it, though. Same for a legislative move. It also will be tested in the courts (although if done by the legislature it might be more likely to get SCOTUS approval). But that doesn’t mean it shouldn’t be tried.
A good many people who had never thought of this are now hearing about it non-stop and being told it’s a dandy idea to stop it because it’s Trump’s proposal.
A lot of folks, particularly in the media, should look between their shoulder blades for the big key. Trump knows how to wind it up.
And, whatever happens, Trump has just announced how serious he is about the entire issue.
Free advertising. Again.
The 14th Amendment is the next Kavanaugh. Let thoughtful citizens ruminate and become disgusted with how the left supports lawlessness and drama. Let Congress see how the people really feel about what has become a floodgate and not a loophole. Once again I am grateful that we have President Trump.
Cornhead on October 30, 2018 at 9:03 pm at 9:03 pm said:
Below is my comment from 2014. I agree with myself! Trump is forcing the issue like I wanted.
“This needs to be made a big issue in the November elections;,especially in Senate races.
Pass the bill and force Obama to veto.
Make Hillary take a stand. For once.”
* * *
Keep preaching it. Update* “Hillary” to “every single Congress-critter and candidate” because the GOP has not been listening for at least the last 20 years.
Which is why we have President Trump.
He may not be successful in every action he takes — or even right, although I’m agreeing with a lot of them –, but he is making the public (especially LIVs), Congress, and the media actually TALK(with more or less hysteria) about the policies, issues, and positions for the first time in decades.
*Or not, if she runs again — please, please Dems: do the most asinine thing you possibly can, and renominate her!