President Trump said he was preparing an executive order to end birthright citizenship in the United States, his latest attention-grabbing maneuver days before midterm congressional elections, during which he has sought to activate his base by vowing to clamp down on immigrants and immigration.
“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 for 85 years, with all of those benefits,” Mr. Trump told Axios during an interview that was released in part on Tuesday. “It’s ridiculous. It’s ridiculous. And it has to end.”
In fact, dozens of other countries, including Canada, Mexico and many others in the Western Hemisphere, grant automatic birthright citizenship, according to a study by the Center for Immigration Studies, an organization that supports restricting immigration and whose work Mr. Trump’s advisers often cite.
Doing away with birthright citizenship for the children of undocumented immigrants was an idea Mr. Trump pitched as a presidential candidate, but there is no clear indication that he would be able to do so unilaterally, and attempting to would be certain to prompt legal challenges.
It is likewise unknown how serious Mr. Trump is about taking the action. In recent days, with the approach of the midterm balloting in which Republican control of Congress is at risk, he has sought to appeal to voters by making other dramatic claims that appear to have no chance of materializing, such as imminent action to grant a 10 percent tax cut for the middle class.
To accomplish the idea he floated on Tuesday, Mr. Trump would have to find a way around the 14th Amendment to the Constitution, which states, “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 amendment means that any child born in the United States is considered a citizen. Amendments to the Constitution cannot be overridden by presidential action, and can be changed or undone only by overwhelming majorities in Congress or the states, with a two-thirds vote of both houses of Congress or through a constitutional convention called for by two-thirds of state legislatures.
I suspect that the proposition is not serious, but it is designed to bump other news off the headlines, and energize Trump’s xenophobic base just before elections.
Mr. Trump told Axios that while he initially believed he needed a constitutional amendment or action by Congress to make the change, the White House Counsel’s Office has advised him otherwise.
“Now they’re saying I can do it just with an executive order,” Mr. Trump said.
If true, Trump’s lawyers are terrible.
The issue was resolved in 1898 in US v Wong Kim Ark. Here’s the syllabus of that decision:
A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, All person 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.
Mr. Ark was the son of legal residents, and the U.S. Supreme Court said that the 14th Amendment made him a U.S. Citizen. But Trump’s lawyers take the position that Ark is limited only to children of legal residents, not to children of undocumented immigrants.
Unfortunately, neither the Ark Court, nor the 14th Amendment make that limitation. The question is simple:
(1) Is the person in question (a) born in the United States or (b) naturalized in the United States
(2) Is the person subject to the jurisdiction of the United States?
For the child of an undocumented immigrant, the answer to both is YES.
So much for strict construction.
The citizenship-denial lobby has focused on the words “subject to the jurisdiction.” They argue that citizens of foreign countries, even if they live in the U.S., are not subject to U.S. jurisdiction, and thus their children are not covered by the clause. To test this idea, ask yourself: If a foreign citizen rear-ends your car on your drive home today, will you, or the police, allow him or her to drive away on the grounds that a foreign citizen cannot be arrested, ticketed, or sued?
For those scoring at home, the answer is no.
And in fact, the Ark Court says the opposite of what Trump’s lawyers are telling him. The opinion says:
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens…
The executive order contemplated by Trump covers those who might themselves become citizens.
Wong Kim Ark, upholding birthright citizenship, seems to have been correctly decided. It’s not crazy to ask Congress to test this by legislation. But claiming a constitutionally-based policy that’s existed for our nation’s entire history can be changed by executive order is nuts.— Bill Kristol (@BillKristol) October 30, 2018
The birthright stunt suggests the Huckabee Sanders press conference was a dud. New distraction needed— Jennifer Rubin (@JRubinBlogger) October 30, 2018