Trump wasn’t trying to eliminate birthright citizenship
I’ve noticed something recently, and it’s not a phenomenon limited to the left. I see it on the right, too. A great many people seem to think that Trump’s EO was an attempt to end birthright citizenship as a whole. It was not.
I first noticed this while listening to a podcast in which people were pointing out that America was built on immigration, that they themselves got their citizenship as the children of immigrants, and so forth, and therefore they’re against Trump’s proposals on birthright citizenship. But of course, that basic process is not in dispute – for legal immigrants. Nor, as far as I know, was the idea to make Trump’s EO on this retroactive and apply to people already born here.
It’s a separate issue whether Trump had the power to do this by executive order. I don’t think he does have that power, as I’ve written before. But the issue I’m writing about in this post is what he actually was trying to do with the order, not whether an executive order would be sufficient to actually accomplish it.
Here’s Trump’s executive order; you can take a look yourself. The order relies on the 14th Amendment requirement that, in order to gain birthright citizenship, a person born here must also be “subject to the jurisdiction” of the US:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
In other words, the order sought exclude babies born to pregnant illegal aliens, and babies born to tourists. The next paragraph goes on to say that documents conferring citizenship should not be issued to those two classes of persons. It adds that it is not retroactive; it only applies to children born after 30 days of the order (I’ve noticed that some people had also wrongly assumed it would be retroactive).
And then it adds this:
Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.
In other words, birthright citizenship would have remained intact for other classes of people.
Now, perhaps you all already knew all this. I had pretty much assumed that everyone already knew it. But then I kept hearing otherwise, some of it from people who are clearly intelligent, some of them also on the right. Was the misunderstanding a failure of the MSM to cover it properly? Or was it just a kneejerk assumption about Trump being an intolerant, marauding person who supposedly wants no immigrants? I don’t know. But I thought I’d clear it up, just in case.
What’s more, I’ve read little recently about a fact I wrote about years ago when discussing this birthright issue, which is that the US is almost alone among first-world nations in conferring it in the first place to the babies of illegal aliens and of tourists. Only Canada has a similar policy (excluding children of diplomats, however, much as we do) along with a host of third-world countries such as Cuba, Chad, and Guyana that ordinarily don’t have to fend off birth tourism anyway. I think a great many people assume that countries such as England and France have birthright citizenship much as we do, but they do not. The general rule for Europe and even for some third-world countries is that the parents must either be born there for some countries, or be legal residents for others.
When I look at recent headlines on the subject, I see a great many like this one from the BBC: “Trump loses Supreme Court battle to end birthright citizenship.” If a person reads only the headline and not the article – which people often do – that person would get the wrong idea. The body of the article itself uses the word “limit” rather than “end,” but doesn’t explain the details, and I think many or most readers would get the impression that Trump wanted to ban much more than was actually the case.
[NOTE: I’m having major WiFi connectivity problems today and had to use my cellphone to publish this. I had originally meant to add a few other articles at the end to illustrate, but have given up at the moment because it’s just too hard to do from a phone. GRRRR!]
[ADDENDUM: Here’s the part I was trying to add earlier, when my Wifi connection dropped out:
Then there’s this headline from something called the American Immigration Council. It reads: “SCOTUS Rules Trump’s Attempt to End Birthright Citizenship Is Unconstitutional.” At least, this article explains the restrictions in paragraph three, but there’s no question in my mind that for the many who don’t read that far, the impression received would be that Trump tried to ban the practice altogether.
On the other hand, this NBC News article uses the word “limit” rather than “end” in the headline. However, it doesn’t explain in the body of the article what those “limits” would be until quite a ways down – that is, paragraph ten. By that point many or even most readers probably would have given up.
I did NOT know this, although I hadn’t tried to dig into it.
Would the vast majority of journalists have clarified this had they known? Very unlikely.
After, they will tell you that Trump thinks that neo-Nazis are a fine group of people.
TommyJay:
I have little doubt that the omissions are mostly purposeful on the part of the press. It’s not that hard to look at the EO and report on it. It’s very clear and it’s not long. The headlines are purposeful. Some headlines use the word “limit” instead of “end,” but then in the articles they don’t explain what the limits were or they put the explanation way way down in paragraph 10 or so.
Neo said: “I think a great many people assume that countries such as England and France have birthright citizenship much as we do, but they do not. The general rule for Europe and even for some third-world countries is that the parents must either be born there for some countries, or be legal residents for others.”
My daughter is American and her husband is Irish. They both live in London and both of their kids: 9 and 11 – my grandchildren – were born in London and have always lived there. They are Americans but not British. They are Irish citizens automatically as their Father is Irish. When they reach adulthood they can decide if they want to be British as they will have lived there for 10 years. They have both Irish and American passports.
Nice to have choices, I suppose.
Speaking of which – check out our soccer team.
Incidentally, the top goal scorer for the American World Cup team, Folarin Balogan, is British and plays in Europe, but his Mother was in the US when he was born so he is playing for America. In addition Zendejas was born in Mexico, Tillman in Germany, Berhalter in the UK, Reyna in the UK, Robinson in the UK and Dest in The Netherlands. Make of that what you will.
You won’t get anything straight out of the Propaganda Ministry, everything is twisted to the Leftists side of the argument.
Didn’t know the President’s position, actually sounds more to the Leftists side than I thought it was.
This issue reminds me of the one concerning deporting illegals. I thought Trump’s campaign pledge was to deport them all. But he restricted it to criminal illegals.
I thought that was smart if wanted to avoid an extremely hostile blow back. Who could be against that? Ha! Guess again.
All of the left & most of the media are just itching for issues to get irate over, when it comes to Trump.
“It’s a separate issue whether Trump had the power to do this by executive order. I don’t think he does have that power, as I’ve written before.”
You didn’t link to a past article, so I can’t address your specific argument(s). But, at least tentatively, I disagree with this.
Assume that the Citizenship Clause really did/does mean what the Trump administration took it to mean as reflected in the EO. Why wouldn’t the President be permitted to direct the relevant agencies to implement the meaning of the clause via EO? It does (in this hypothetical) mean that newborns of tourists and illegal aliens may not by virtue of merely being born here become citizens.
Assume that the Supreme Court had construed the clause consistent with the administration’s view in the Barbara case. They would have to have written something like this if and EO were improper: “The President is correct, but he can’t direct his agencies to implement the meaning of the clause. Babies of tourists/illegals born here continue to be citizens going forward notwithstanding the meaning of the clause.” That wouldn’t make sense. I guess they would have to have written something like: “Whatever the clause means, the President can’t implement it by EO [again, why not?], so we’ll get back to you if a statute comes before us; until then, keep guessing.”
There are provisions of the constitution that are self-executing, some that are not (ie., they require a statute, such as the creation of a bankruptcy system), and some that are self-executing but can also have appropriate statutes passed to supplement their self-executing nature. I would think the Citizenship Clause would be a case of the latter. If the clause has a certain meaning, you don’t need a statute merely to repeat that meaning. (Section 5 of the 14th Amendment should not be taken as a requirement that there be a statute to implement every provision of the amendment; it’s not worded that way.)
An EO can’t make up entirely new law or contradict existing law. For example, the President can’t by EO change the marginal tax rates or impose a new tax otherwise consistent with the Constitution. But the proper purpose of an EO is to direct the relevant components of the Executive Branch to enforce a known law in the manner outlined in the EO (assuming that the procedures in the EO are also themselves consistent with the Constitution). So, again, if the Citizenship Clause has a certain meaning and no statute happens to exist, surely the President would be able to effectuate the clause by EO.
AFAIC, every one born in this country to an illegal or ‘tourist, student, visa overstay or whatever’ parent since Reagan’s amnesty should be stripped of their citizenship.
And this includes family members and a few people I love.
They can all apply and jump through the hoops. We can sponsor the ones that matter to us.
I am so over this BS.
Change my mind.
Molly Brown, I’m with you. Becoming a citizen by timing* a birth seems so wrong to me. It’s cheating.
* Or by “luck” of birthing here.
I am disappointed that SCOTUS failed to care or discuss (IIRC) how ridiculously unfair the status quo is, to the people who spend the time and money to gain citizenship the formal way. I.e., the correct, legal way, IMO.
I don’t think there is much difference. The only group I guess this wouldn’t affect is legal immigrants who have a child here… but they are probably going to stay anyway… Everyone hates the anchor baby phenomenon. Mainly because then welfare starts and no taxpayer wants another mouth to feed.
Watt is onto much in this thread.
“Why wouldn’t the President be permitted to direct the relevant agencies to implement the meaning of the clause via EO? It does (in this hypothetical) mean that newborns of tourists and illegal aliens may not by virtue of merely being born here become citizens.”
About the first point and line, some mavens have suggested Trump do so again, but an EO written to be narrower, and thus Constitutional.
How precisely the wording would work to thread the needle of this egregiously lawless dicta, I know not.
Marlene rightly observes: “I am disappointed that SCOTUS failed to care or discuss (IIRC) how ridiculously unfair the status quo is, to the people who spend the time and money to gain citizenship the formal way. I.e., the correct, legal way, IMO.”
I can imagine this SCOTUS decision will provoke a lawsuit to directly address this issue. And likely it will require the attention by the obtuse ones more.
TJ; Watt:
The problem with dictating the meaning of the 14th Amendment by an EO is that the amendment is part of the Constitution. A president can have an opinion about an interpretation of the Constitution, but he doesn’t determine that meaning. He can certainly issue an EO and try, but it is not necessarily determinative and the Court is usually the arbiter of such interpretations (since Marbury, anyway). What’s more, in the case of the interpretation of the part of the 14th Amendment that deals with birthright citizenship, there is quite a bit of legal (court) precedent on the matter, and Trump’s EO goes against the legal precedent of the last hundred years or so (I don’t have the exact figure, but you get the idea). An EO doesn’t change the body of law that interprets an amendment to the Constitution.
@ Steve > “Everyone hates the anchor baby phenomenon. Mainly because then welfare starts and no taxpayer wants another mouth to feed.”
Apparently not everyone hates it.
And even if no taxpayer wants more mouths to feed, the Welfare Agency Bureaucratic Empire and its employees certainly do.