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 set to air over the weekend. “It’s ridiculous. It’s ridiculous. And it has to end."
Assuming the president follows through with this decision, two things are likely to happen before the ink is dry on his executive order:
- Liberals, who denounced the Second Amendment last week, will now praise the sanctity of the Constitution and its amendments; and,
- The order will most certainly be challenged in the courts.
Here are seven good faith arguments that a challenge will fail and the order will succeed:
1. The 14th Amendment Doesn’t Apply to Aliens
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 United States —that’s the whole point of birthright citizenship. The real question is whether he’s subject to its jurisdiction.
The simple answer would be of course — all people within our borders are subject to our laws and therefore our jurisdiction.
But they’re not exclusively subject to our jurisdiction; they’re primarily subject to the jurisdiction of their home country. They cannot, for example, be drafted into American military service or obtain a U.S. passport.
2. Birthright Citizenship Wasn’t the Intent of the Framers
U.S. Sen. Jacob Howard, R-Mich., made it clear that the intent of the 14th Amendment would not grant citizenship to the offspring of foreigners by virtue of their birth within the borders of the United States.
"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," Howard said when he introduced it on the Senate floor on May 23, 1866. "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 U.S., but will include every other class of persons."
The 14th Amendment’s only purpose was to overturn the Dred Scott decision (Dred Scott v. Sandford, 60 U.S. 393 (1857), and grant U.S. citizenship to former slaves and their children. "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."
3. The Issue Has Never Been Adequately Tested in the Courts
Constitutional scholars often refer to U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), as precedent for birthright citizenship of the children of aliens. It decided that a man born to Chinese parents was an American citizen despite the provisions of the Chinese Exclusion Act prohibiting Chinese from attaining citizenship.
In a 6-2 decision, the Supreme Court concluded that because of the 14th Amendment, "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."
But Wong can be distinguished in that Wong’s parents were permanent legal residents at the time of his birth, and therefore subject only to U.S. jurisdiction.
No case has ever been presented to the court of someone born to parents having temporary legal residence — let alone illegal aliens.
4. Plyler v. Doe is Inapplicable
Constitutional scholars also point to the 1982 case of Plyler v. Doe, 457 U.S. 202, (1982) as dispositive, because it dealt expressly with the children of illegal aliens. The problem is that Plyler didn’t deal with the issue of citizenship but rather with another section of the 14th Amendment.
At issue was a Texas statute that withheld funding for the education of the children of illegal immigrants. Texas argued that because the illegals weren’t technically "within the jurisdiction" of the United States, it wasn’t responsible for their costs.
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."
But "within the jurisdiction" for the purpose of equal protection and "subject to the jurisdiction" for purposes of citizenship are miles apart.
5. The Practice of Conferring Citizenship Was an Executive Decision
Birthright citizenship has never been written into law, nor was it the intent of the 14th Amendment. The practice of birthright citizenship began in the 1960s by the Immigration and Naturalization Service, and during the last 50 years became the de facto practice of succeeding administrations.
But again, it wasn’t a law. Because it was a practice introduced by a prior administration, it can be ended by the current administration without Congress.
6. The Makeup of the Current Court Should Back Trump
Trump was fortunate in having the opportunity to appoint two new justices to the high court: Neil Gorsuch in 2017 and Brett Kavanaugh this year. Each was selected with a singular judicial philosophy: Dedication to the provisions of the Constitution as they were written at the time they were drafted.
This is the exact opposite philosophy of jurists who see the Constitution as a "living document" — one that changes with the times.
Constitutional originalists like Gorsuch and Kavanaugh would instead look to the plain language of the constitutional provision under review, and if there are any questions, look to the intent of the drafters.
The phrase that the 14th Amendment "will not, of course, include persons born in the United States who are foreigners [or] aliens" would scream out to any person reading it.
7. Executive Order: The Most Appropriate Measure
Not only is an executive order an available arrow in Trump’s quiver to address the problem of birthright citizenship, it’s the most appropriate one.
It began a half century ago as a modus operandi of doing business. And it must be stopped.
"If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee a full access to all public and social services this society provides."
President Trump didn’t say that — former Senate Majority Leader Harry Reid, D-Nev., did.
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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