The Strong Case Against Birthright Citizenship

This week, President Trump once again shocked the political establishment by telling the creators of the “Axios on HBO” documentary series that he was going to sign an executive order bringing birthright citizenship to an end.

“It was always told to me that you needed a constitutional amendment,” he said. “Guess what? You don’t.”

President Trump infamously railed against the problem of anchor babies on the campaign trail, drawing condemnation from across the spectrum – Republicans, Democrats, immigration activists, and reporters decried it as a slur against immigrant citizens and a stance in defiance of the Constitution.

This week, all of those usual suspects were at it again, insisting that, at best, this was a political stunt meant to shift focus from the mail bomber and the synagogue shooter and onto something more palatable for Trump’s racist/xenophobic/deplorable/evil/etc. base. Virtually no mainstream outlet took the issue seriously or made the slightest effort to see if there was any merit and/or legality to what Trump was proposing.

That’s nothing new when it comes to this president, of course.

But, as with most things, Trump is right.

The 14th 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.”

To be sure, this is strong language. And if Trump decides to end birthright citizenship for illegal immigrants with the stroke of a pen, the case will be before the Supreme Court before you can blink.

But the fact that Trump has proposed a controversial plan does not mean that he has proposed an unconstitutional one. The 14th Amendment was drafted in response to one national question: What do we do with the freed slaves? Are they to be considered American citizens all of a sudden? Or do they occupy some vague no-man’s-land of unclear documentation? The Supreme Court, of course, came down in favor of the latter in its Dred Scott decision, one of the worst findings in the history of that court.

The 14th Amendment changed all that and put it beyond doubt that slaves born in America were to be considered citizens.

But does it confer citizenship to a foreign spy who happens to be working in the U.S. at the time of their child’s birth? Does it confer immediate citizenship to an illegal immigrant who hopped the fence just to have their baby? Does it grant lifetime citizenship to a foreign tourist who happens to have their baby while vacationing at the Grand Canyon? What absurdity!

The key to Trump’s belief that he can sign this order is located in the clause “and subject to the jurisdiction thereof.” For too many years – and this idea has never been challenged in court – this has been interpreted as “subject to the laws of the United States.” But in sponsoring that clause, Sen. Jacob Howard made it clear that it was meant to exclude “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

There we have another sticking point. Did Howard mean to include ONLY children of “ambassadors or foreign ministers?” Or did he mean “all of the above?”

That’s where we may need the Supreme Court to weigh in, but it is disingenuous for Trump’s critics to act as though there is no other way to read it.

It is also absurd to believe that we have an amendment in the Constitution that actively encourages anyone and everyone to find a way to have their babies in the U.S., if only to give their kid some options later on in life. If one of the 19 hijackers had a kid in the U.S. while they were plotting 9/11, that kid would now be a citizen. Does that sound right? That’s the law as it stands.

We happen to believe that President Trump is onto something here. And if he can find a way to at least limit the now-unlimited right to birth citizenship, it will go further than the tallest wall in disincentivizing illegal immigration. That alone makes this a challenge worth pursuing.

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