Trump announces plan to end birthright citizenship by executive order

This move is “almost certain to draw legal challenges on constitutional grounds.”

Yeah, no shit, Sherlock.

The vast majority of constitutional scholars believe that ending birthright citizenship would be a violation of the 14th Amendment. You know what? He may be right, and those scholars may be wrong. It is not an action that will defy the explicit words of the 14th, but rather the common interpretation of the italicized phrase beneath. The Amendment 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.”

But whether he is right or wrong on the principle of birthright citizenship, this is not a matter that should be decided by an executive order. It should either be a new amendment to the Constitution or a new law subject to interpretation by the courts in the usual manner. Needless to say, the problem with ruling by executive orders is that it is tantamount to having laws written in pencil. If a President can determine such an action, so fundamental to American law and values, with an executive order, then the next President can undo it with his own executive order, and so forth. That’s not the way the American rule of law should work. It is the function of the legislative branch to to create laws, and the judicial branch to interpret them.

Personally, I don’t think he will actually do this at all. I’m guessing that this is just a rhetorical strategy to get immigration to the top of the news cycle prior to the election (as opposed to right-wing violence). Trump and his advisers feel that immigration is the one issue which resonates most strongly with their base, and is most likely to get people to the polls. This is why he keeps haranguing and scaremongering about the migrant caravan.

But then again, Trump is like that stereotypical movie character who “might just be crazy enough to do it.”

By the way, in two related issues:

Shep Smith of Fox News said of the caravan, “There is no invasion. No one is coming to get you. There is nothing at all to worry about.” The pundits on his network are obviously pushing a different narrative.

Some parts of this debate are matters for interpretation, but there is one case where Trump is just completely wrong. He claims America is the “only country in the world with birthright” citizenship. That’s just him making things up, as usual. Because the Western Hemisphere is built on migration, every major country in the Americas offers it, and almost all of the smaller countries. (There are only three exceptions: Cuba, Costa Rica and Suriname.)

6 thoughts on “Trump announces plan to end birthright citizenship by executive order

  1. My understanding is that “subject to the jurisdiction thereof” was an exclusion of Native Americans living on reservations. People who enter the United States illegally are subject to the jurisdiction of the United States. For instance, they can be prosecuted for illegal entry.

    While discussing this issue on Special Report this evening, Bret Baier played a clip of Charles Krauthammer discussing birthright citizenship in 2015. He said that birthright citizenship is not the problem. He said that if you secure the border and pass legislation limiting the preferences we give to families who wish to immigrate there is no need to amend the Constitution.

    You might be able to limit birthright citizenship with legislation specifying who is subject to the jurisdiction of the U.S. I would not support such legislation but I am not sure how the courts would rule on the issue. I am extremely confident that the Supreme Court would rule (probably 9 – 0) that the president cannot end birthright citizenship with an executive order. Of course, I haven’t read the legal opinions arguing the president has that power and I might be less confident if I understood that argument. But having an issue like this be subject to executive orders that can be changed with each new president would be insane. I’m sorry, President Trump says your not a citizen. Oh guess what President Warren says you are!!! Oh I am so sorry, President Hannity just took your citizenship away!!! Although, I don’t see how an executive order could revoke citizenship. So all that would happen is babies born to illegal aliens during Republican administrations would have to wait until a Democrat was elected to become citizens. For that reason alone, the Supreme Court would strike down a Trump executive order ending birthright citizenship.

  2. The intent of the 14th Amendment was about enfranchising newly freed slaves. That’s where the EO, if Trump does go forward with it, will try to limit the effect of the 14th Amendment. But an EO is just that, it can be reversed by another president. Even a bill passed by Congress and signed into law by the POTUS can be ruled unconstitutional.

    In all reality, it’s gonna take another constitutional amendment to stop granting citizenship to illegal immigrants by having anchor babies.

  3. If illegals etc. are not subject to the jurisdiction of the US they can voilate laws in the with US with immunity…the subject to the jurisdiction of was put in for those in the US with diplomatic immunity etc.

    1. That’s a legitimate take, but scholars don’t agree unanimously on that point, and even the Supreme Court has contradicted itself in various previous rulings.

      In Elk v Wilkins, for example, the court ruled that though Elk was born in the United States, he was not a citizen because he owed allegiance to another entity when he was born rather than to the U.S. and therefore was not “subject to the jurisdiction of the United States” at the time of birth.

      The opinion (102):

      “The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is 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.”

      That case was about Native Americans, who were not legally U.S. citizens at that time, but that logic could also be applied to anyone who is not a permanent legal resident, not just diplomats, but tourists and illegals as well.

      Other (more recent) rulings have taken different directions.

      Of course the Supreme Court is not really bound by previous Supreme Court rulings. The court will rule what it will rule, and it’s often difficult to predict. I think it could go either way in the current Supreme Court if Congress tested the principle with a law.

      I’m not sure how it would go with an executive order. I guess that would probably be tested as having exceeded executive responsibility, and in such a case the court might avoid ruling on the “jurisdiction” clause itself.

        1. 1. That is one take, not the ONLY take

          2. Apart from pure opinions, it includes factual errors to develop those opinions. For example: “He is planning an executive order that would try to change the meaning of the Constitution as it has been applied for the past 150 years.” That has clearly NOT been the way the 14th has been applied universally for 150 years. Professor Epps may be teaching constitutional law, but he either did not do his homework, or deliberately skipped over an important Supreme Court case. I previously cited Elk v Wilkins, in which the court ruled that though Elk was born in the United States, he was not a citizen because he owed allegiance to another entity when he was born rather than to the U.S. and therefore was not “subject to the jurisdiction of the United States” at the time of birth.

          The opinion reads (102) (and the words are very clear and unambiguous):

          “The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is 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.”

          Those are the Supreme Court’s words, not mine.

          Now I’m not saying the author’s opinion is wrong. It may well be correct, but it is built on sand, not on bedrock. He has ignored facts which are inconvenient to his case. (Since he teaches this material, he ought to know his subject matter, so I am assuming that he deliberately omitted those facts, which I consider worse than not knowing them.)

          For the record,

          (1) I don’t think this is a matter of the words of the 14th Amendment, but rather their interpretation. This is a case where there is no right or wrong because the interpretation is whatever the Supreme Court says it is. As the court is currently constituted, it is difficult to say how the court might rule if Congress passed such a law. Remember we will be living with a conservative majority for a long time, and the tilt to the right could become even more pronounced if RBG can’t remain on the correct side of the dirt until there is a Democrat in the White House or a Democratic majority in the Senate.

          (2) If Trump tried to do it by executive order, I think that would get struck down quickly, not because of an interpretation of the jurisdiction clause, but because that would be an action exceeding executive authority. In such a case, I don’t think the courts would rule on the subject matter itself, but solely on the right to establish law by executive decree. As I mentioned earlier, I don’t think he has any intention of doing this. This is a marketing strategy designed to bring immigration to the top of the news cycle, thus drowning out right-wing violence.

          (3) As to the broader question of whether the 14th Amendment SHOULD be clarified by a new amendment to the Constitution which narrows citizenship to the children of citizens or permanent legal residents, I would support such an amendment. Trump is correct in that the laws of a nation should be for its benefit, and there is no benefit derived from the current policy, while there are possible negative effects. Of the world’s highly developed economies, only Canada and the USA have such a policy, and I would be completely happy to let Canada have a monopoly. (And they seem very happy with the policy.) But what I think is totally irrelevant. That is just pie-in-sky bullshit. The passage of a Constitutional Amendment requires, by either method, a majority larger than any which can be produced on this issue in the foreseeable future … so it ain’t gonna happen.

          Given all of that, there’s only one realistic way birthright citizenship could be ended – if Congress passed such a law and the Supreme Court ruled it constitutional. That could possibly happen if the GOP holds on to both chambers, but will absolutely not if the Dems take the HoR.

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