President Donald Trump vowed to bring the practice of birthright citizenship to a halt with an executive order. Good faith arguments can be made for both an order’s success and failure. "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," Trump said during an interview with Axios.com set to air over the weekend.
"It’s ridiculous. It’s ridiculous. And it has to end."
Apart from the fact that Canada, America’s northern neighbor, also recognizes birthright citizenship, if the president follows through with this decision, two things are likely to happen before the ink is dry on his executive order:
- Liberal heads will figuratively explode; and,
- The order will be challenged in the courts.
Here are seven good faith arguments that a challenge will succeed and the order will fail:
1. Violates a Clear Reading of the Constitution
The 14th Amendment to the Constitution provides, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."
There’s no question but that a so-called anchor baby is born within the U.S.; the question is, is he subject to its jurisdiction?
The short answer is yes.
Not only are you subject to the laws of the U.S. while you’re within its borders — whether legally or illegally — you also enjoy many of the same constitutional rights conferred upon citizens, particularly those afforded to anyone accused of a crime.
2. United States vs. Wong Kim Ark
Amendment 14 was ratified during Reconstruction, overturning the Dred Scott [Scott v. Sandford, 60 U.S. 393, (1857)] decision and conferring citizenship upon slaves and their children. U.S. vs. Wong Kim Ark, 169 U.S. 649 (1898), tested its terms on the children of Chinese born in the U.S., given that the Chinese Exclusion Act specifically denied citizenship to Chinese immigrants.
In a 6-2 decision, the U.S. Supreme Court concluded that that "the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth."
3. Afroyim v. Rusk, 387 U.S. 253 (1967)
In 1967, the Supreme Court dealt with the revocation of citizenship that had already been granted.
The Court held that Congress was barred from revoking anyone's citizenship without their consent because of the provisions of the 14th Amendment. In this case, it held that a statute that automatically revoked the citizenship of one who had voted in a foreign election was unconstitutional, and therefore unenforceable.
4. Vance v. Terrazas
This case expanded Afroyim v. Rusk, and involved a person of dual U.S.-Mexican citizenship — U.S. by virtue of having been born in the United States; Mexican by virtue of his father’s Mexican nationality.
When Laurence Terrazas enrolled at a Mexican university, he swore "adherence, obedience, and submission to the law and authorities of the Mexican Republic," and renounced his U.S. citizenship as a part of the application process.
It was unclear whether he knew what he was doing in this case. The court ruled, "In establishing loss of citizenship, the government must prove an intent to surrender United States citizenship, not just the voluntary commission of an expatriating act such as swearing allegiance to a foreign nation."
5. Plyler v. Doe
None of the three cases above involved children of parents who had arrived to the United States illegally. The case of Plyler v. Doe 457 U.S. 202 (1982) did. Phyer didn’t deal with the issue of citizenship directly, but addressed another portion of the 14th Amendment —the Equal Protection Clause.
At issue was a Texas statute that withheld funding for the education of the children of illegal immigrants, with Texas arguing that the illegals weren’t technically "within the jurisdiction" of the United States.
In a 5-4 decision, the court struck the Texas law down, stating "the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."
6. The New Court Makeup Won’t Help
Some observers opine that with Trump’s high court appointment of justices Neil Gorsuch and Brett Kavanaugh, the Supreme Court will likely approve an executive order limiting the 14th Amendment’s application.
The court has revisited long-held decisions before.
The most famous instance was when Brown v. Board of Education 347 U.S. 483 (1954) reversed the long-standing "separate but equal" ruling in Plessy v. Ferguson 163 U.S. 537 (1896).
That marked the end of segregation.
In this case, however, the exact opposite would be the likely result.
Both new associate justices are considered Constitutional originalists -- that is, they believe that the Constitution means exactly what it says, without regard to the times or political climate.
Given this judicial philosophy, they’re unlikely to unwind the clock 120 years.
7. The President’s Proposed Action Exceeds His Authority
Presidents since George Washington have relied on executive orders to implement powers they already have — they may not be used to expand those powers.
When former President Barack Obama attempted to give legal status to 4 million undocumented immigrants through the use of his own executive order, he was stopped dead in his tracks by a U.S. district court and then a U.S. Court of Appeals.
By the time the issue reached the Supreme Court, it was without its most conservative justice — Antonin Scalia. The court ruled 4-4, leaving the lower court decisions untouched.
At the time, then-candidate Trump said that the Supreme Court "has kept us safe from executive amnesty — for now. But Hillary has pledged to expand it, taking jobs from Hispanic and African-American workers."
Then Again, Maybe That’s Not the President’s Intent
The author of "The Art of the Deal" may be aware of all this — or at least he’s been told by his advisors.
Given that, Trump’s intention may be to get Congress involved to do its job. And it’s already had that effect.
Upon hearing the president’s announcement, Sen. Lindsey Graham, R-S.C. tweeted,
"Finally, a president willing to take on this absurd policy of birthright citizenship."
Graham expanded on this in a series of tweets Tuesday morning, finally stating, "In addition, I plan to introduce legislation along the same lines as the proposed executive order from President @realDonaldTrump."
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He’s also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. To read more of his reports — Click Here Now.
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