Birthright citizenship may be under attack.
President Donald Trump has announced a potential executive order that would end “birthright” citizenship — the standing right to a U.S. citizenship that comes with being born in the U.S. held by anyone born within the borders, including children of non-citizen immigrants.
According to the New York Times, the “attention-grabbing maneuver” comes as an effort to bolster support for the Trump Administration in the midst of the midterm elections. “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 U.S. for 85 years, with all of those benefits. It’s ridiculous, and it has to end,” said President Trump to Axios, disregarding the more than 30 other nations in the Western Hemisphere alone that hold similar birthright laws.
But how feasible would it actually be for Trump to implement such an executive order? Colorado College Professor of political science Douglas Edlin said that the opposition lies in the first section of the Fourteenth Amendment, which states that all persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S. and of the state wherein they reside. “The assumption that most people make is [that] that is the textual constitutional basis for birthright citizenship and it can’t be altered by executive order, or even by Congress,” Edlin said.
Although the constitutional language may protect birthright citizenship, the document includes the dependent clause that modifies the amendment with the phrase, “subject to the jurisdiction thereof.” An alternative argument is that it would be superfluous if there weren’t limitations on this clause.
“The argument on the other side is that the children of illegal immigrants are not subject to the jurisdiction of the U.S., and so therefore, they are not, simply by virtue of being born on U.S. soil, citizens of the country” said Edlin. “I think that there’s a question of whether [President Trump] can do this by executive order, and then there’s a second question about whether it would be constitutional.” Thus, there are citizenship scholars who argue that because of the clause, children of illegal immigrants are not entitled to birthright citizenship under the Constitution.
House Speaker Paul Ryan was quoted by Kentucky radio station WVLK as saying, “[Trump] obviously cannot do that” and that somehow successfully doing so “would involve a very, very lengthy constitutional process … the Fourteenth Amendment is pretty clear.” However, according to Edlin, “Presidents have done many things by executive order that were not obviously within their authority and wound up being sustained…The question of its constitutionality is critical.”
When asked about the similarities between the proposed executive order and Executive Order 9066, which was enacted by President Franklin Delano Roosevelt during World War II and led to the incarceration of Japanese-Americans in internment camps, Edlin believes the two situations to be completely dissimilar. “First of all, [the Japanese-Americans] were here [in the U.S.] legally,” said Edlin. “Secondly, the country was at war. So, because of the authority that is constitutionally granted to the president during wartime, there was arguably, not talking about the morality of this obviously, but strictly in terms of the constitutionality of it and the basis for it, there was a stronger constitutional argument for the president having the sole authority to allow for internment. Baseless and immoral and unjustified as it was, there were different kinds of pressures and different powers granted to the President at that time. I understand the arguments that are being made, but there is no imminent national security threat posed by the children of illegal immigrants.”
Therefore, the authority of President Trump to implement an executive order under the precedent of FDR’s actions during World War II is tenuous because we are at war with neither Mexico nor any other Latin American countries.
Vice President Mike Pence recently said to Politico, “We all cherish the language of the 14th Amendment, but the U.S. Supreme Court has never ruled on whether the language of the 14th Amendment — ‘subject to the jurisdiction thereof’ — applies specifically to people who are in the country illegally,” echoing the discrepancy in the interpretation of the amendment between those who favor and oppose the proposed order that Edlin spoke to.
So, for those who the order would impact, particularly the children of illegal immigrants born in the U.S., there are contentious arguments both for and against their naturalization. Whether or not the order is enacted will be seen in the coming weeks. But the prospects of retaining this right are anything but dim; even if the order were to be passed, a series of legal battles challenging it would be inevitable.