Ferocious legal and political battles await any attempt by U.S. President Donald Trump to end birthright citizenship for the children of undocumented immigrants, according to a wide range of scholars, many of whom saw no viable means for Trump to achieve his stated goal.
“There’s no way President Trump can end birthright citizenship by an executive order,” Georgetown University law professor Nan Hunter said. “This is a constitutional provision.”
“I can’t imagine there is a single judge in the entire country who would uphold such an executive order — it is a legal nonstarter,” said Ilya Shapiro, a senior fellow in constitutional law studies at the Washington-based Cato Institute.
The 14th Amendment to the U.S. Constitution — ratified in 1868, three years after the end of the Civil War — 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 say that citizenship occurs upon birth or naturalization — that’s about as specific as our Constitution ever gets,” Hunter said.
Not so, according to Trump.
“So-called Birthright Citizenship … will be ended one way or the other,” the president tweeted Wednesday. “It is not covered by the 14th Amendment because of the words subject to the jurisdiction thereof.'”
Some conservative scholars agree, arguing the 14th Amendment’s language contains a loophole.
“The question is, what does it mean to be ‘subject to the jurisdiction thereof’?” Heritage Foundation legal policy analyst Amy Swearer said. “Based on the legislative history at the time, the 14th Amendment’s framers intended to give citizenship only to those who owed their allegiance to the United States and were subject to the complete jurisdiction of the United States.”
Swearer added, “The primary purpose of this amendment was to grant citizenship to the newly freed slaves, who were themselves lawful permanent residents. They were not subjects of a foreign power. They didn’t owe allegiance to a tribe or to any other authority.”
Who in America is exempted from U.S. jurisdiction and federal laws? Almost no one, according to Shapiro and others.
“‘[S]ubject to the jurisdiction thereof’ excludes diplomats or foreign armies. Even those who are here illegally are subject to American jurisdiction — they can be punished for crimes they commit,” Shapiro said. “That’s different than diplomats, for example. Russian diplomats at the U.N. rack up millions of dollars of parking tickets [in New York], and they can be expelled from the country, but they can’t be forced to pay the fines.”
American University political historian Allan Lichtman said any reading of the original debate surrounding the 14th Amendment shows its proponents intended near-universal birthright citizenship.
“The framers made it crystal clear that it had very broad coverage, that it applied even to the Chinese who, at that time, were not eligible for citizenship. They couldn’t vote, they couldn’t serve on juries, but their children were U.S. citizens,” Lichtman said.
In a famous exchange in 1866, then-Republican Senator Lyman Trumbull of Illinois was asked by a fellow senator if birthright citizenship would “have the effect of naturalizing the children of Chinese and Gypsies born in this country?”
“Undoubtedly,” Trumbull replied, adding that “the child of an Asiatic is just as much a citizen as the child of a European.”
In 1898, the U.S. Supreme Court affirmed the American citizenship of a U.S.-born child of Chinese parents, setting a legal precedent that today’s Supreme Court would consider if a new case came before it, either as a result of an executive order or an act of Congress limiting birthright citizenship.
“There is a [federal] statute that essentially repeats what’s in the 14th Amendment, and Congress today could amend that statute. But if they did, that new statute would contradict the Constitution, and that is exactly the kind of situation in which the Supreme Court would rule,” Hunter said. “I think it’s a very strong bet that the Supreme Court would strike this [potential executive order or act of Congress] down.”
Some Republican lawmakers are undeterred.
“There is a statute regarding the 14th Amendment, so I think it is something Congress would have to weigh in on,” North Dakota Republican Senator John Hoeven said. “We have to make sure we are securing the border, that we’re not creating incentives to come here illegally. So, we have to have something common sense.”
If an executive order or congressional action are unlikely to succeed, a new constitutional amendment would be the only avenue left to end birthright citizenship for the children of undocumented immigrants.
“It’s an extraordinarily difficult process to amend the Constitution,” Georgetown University professor Hunter said. “It’s a two-thirds majority [in Congress] required to propose an amendment to the Constitution, and ratification requires a three-fourths majority of the states. That’s a super-majority consensus, which is why it’s been done relatively rarely in our history. It’s an extremely tough lift.”
Trump’s focus on birthright citizenship and illegal immigration has spawned an outpouring of often acrimonious debate across America. Many observers believe the president’s pronouncements have nothing to do with serious policy proposals.
“I think ultimately this is a political maneuver,” Shapiro said. “The president decided that ahead of next week’s [midterm] elections, it would be good to raise this issue.”
“What lies behind this is hard politics, not constitutional understanding,” Lichtman said. “Floating this idea that, with the stroke of a pen, he [Trump] is going to deprive people of their citizenship rights is just part and parcel of demonizing immigrants and making people fearful of a so-called immigrant menace.”
Conservatives reject the charge.
“It is not inhumane to have borders, to attempt to enforce those borders, and to reverse some of the enticement to come here illegally and have citizen-children,” Swearer said. “This is not motivated by racial animus, by hatred for foreign nationals or that we want to keep non-white people out. It simply means that we have laws, and we want people who come here to follow those laws.”
Lichtman noted that many of today’s arguments over immigration echo battles of the past.
“The fear of the immigrant is nothing new. This kind of nativism, extreme nationalism, goes back to the earliest days of the republic,” he said. “For a very long time, America’s naturalization laws did not permit naturalization of Chinese and other Asians. The targets have changed over time, but the rhetoric and the nativist sentiment has not.”