The sky-is-falling news of the moment comes courtesy of Mr. Trump suggesting he can and will issues an Executive order ending birthright citizenship. Why? Because there are many learned legal scholars who believe it was never the intention of the 14th amendment? Because it is a hot issue that activates Trump’s base and immigration reform polls well from center to right? Because it will distract the Democrats and the media for a day or two? Liberal heads will explode?
All of the above.
It is my opinion that the Executive Order if one is even issued, is not meant to actually “end birthright citizenship” in its tracks. The liberal lower courts will never let that stand. Mr. Trump, his legal team, and the nice folks at the Department of Justice know this. Given Mr. Trump’s ability and penchant for the long game I contend that the purpose of an EO is to get the issue moving toward the US Supreme Court so it might rule on whether the current interpretation is correct and legal.
SCOTUS has never weighed in on this so the odds they’ll take a look are high.
The argument’s against birthright citizenship looks something like this.
“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”
A child born to American citizens in a foreign country is the child of persons owing allegiance to the United States and no other jurisdiction and therefore is a US citizen. A child born of a Honduran who marching toward our border waving their nations flag, who has arrived illegally and entered without permission is not.
To more clearly understand this take, consider the opinions of those drafting the 1866 Civil Rights Act.
In the 39th Congress, which enacted the 1866 Civil Rights Act and proposed the Fourteenth Amendment, the question arose of how to avoid granting birthright citizenship to members of Indian tribes living on reservations. The issue was whether an explicit exclusion of Indians should be written into the Citizenship Clause as it was in the above-quoted first sentence of the 1866 Act. It was decided that this was not necessary, because, although Indians were at least partly subject to the jurisdiction of the United States, they owed allegiance to their tribes, not to the United States.
Senators Lyman Trumbull of Illinois and Jacob Howard of Ohio were the principal authors of the citizenship clauses in both the 1866 Act and the Fourteenth Amendment. Senator Trumbull stated that “subject to the jurisdiction of the United States” meant subject to its “complete” jurisdiction, which means “[n]ot owing allegiance to anybody else.” Senator Howard agreed that “jurisdiction” meant a full and complete jurisdiction, the same “in extent and quality as applies to every citizen of the United States now.” Children born to Indian parents with tribal allegiances were therefore necessarily excluded from birthright citizenship, and explicit exclusion was unnecessary.
Suggesting that the intent of the 14th Amendment was to allow children born to parents of illegal immigrants who broke the law and snuck into the country, at least in that context, seems absurd. But where it has been politically convenient, that is precisely what we have been told to believe.
That doesn’t make it true or right or even wrong. It makes it the object of further debate.
I will not pretend that Mr. Trump’s recent thoughts are any less politically convenient or that he is wrong to set in motion a series of events that may, for the first time in our nation’s history, ask the Supreme Court to give its opinion.
It could be a few years, but where there are differing legal interpretations of either the Constitution or written law, that’s why they are there.
Mr. Trump should write his order and let the games begin.