President Trump may attempt to challenge the traditional view that constitutionally anyone born on U.S. soil automatically becomes a citizen. A sort of birthright based solely on territory of birthplace.
The outrage from the left wing media and their legal scholars who claim Donald Trump is taking a wrecking ball to the constitution are once again choosing not to be thoughtful about an issue, a.k.a. “being purveyors of fake news”. It’s their complete partisan, hair on fire, rhetoric that completely deceives and gins up the mobs in waiting.
The first absurdity that needs swatting is that an executive order is being used to subvert the constitution. Obviously, this is not the plan. If the Trump Administration goes forward with an executive order, it will be because they believe the constitution says something different than that of conventional wisdom. It wouldn’t be an attempt to ignore the constitution because they don’t like what it says. That’s an Obama era strategy such as his executive order giving legal status to dreamers.
Donald Trump would expect that the executive order would then be challenged by other parties. The result would be a court fight where it would finally be decided by the Supreme Court. This process could take many years.
This executive order or a law passed by Congress would be just a challenge of how we’ve interpreted the 14th Amendment. Either way, birthright citizenship will be decided by the courts, not Donald Trump or a law passed by Congress.
Trump’s argument about the interpretation of the constitution, not his disdain of birthright citizenship, will be what legally ends the birthright policy for illegals.
The 14th Amendment, part 1, reads:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The critical portion to consider is the clause, “and subject to the jurisdiction thereof.” In order to be a citizen, you must be born in the U.S. and be subject to U.S. jurisdiction. The conjunction “and” is critical here. It’s not just born here as everyone on TV says; it’s both.
Subject to the Jurisdiction Thereof
The Department of Justice’s case would hinge on this clause. So grappling with it is a thoughtful attempt to see if there’s any merit to a possible executive order. Just saying it’s a midterm election ploy or that Donald Trump is a racist shouldn’t be taken seriously.
There’s a Supreme Court ruling that any future case would take into account. In the case, United States v. Wong Kim Ark, the court ruled that the Chinese parents legally resided within the United States even though they were still subjects of the Emperor of China. This is why the court ruled that Wong Kim Ark was a citizen by birth.
The clause, subject to the jurisdiction thereof, applies to the parents, not the baby. The court basically ruled that being a citizen of another country didn’t prevent birthright citizenship for children born in the U.S. If this is the correct interpretation of this clause, then why is this clause even added?
It was added because the clause is exclusively about being subject to the power of the United Sates no matter where ones citizenship resides. We can infer, therefore, that it’s possible not to be subject to the power of the United States.
Foreign diplomats are one group that can be considered as not being subject to the laws of the United States. Illegal aliens are another group too because they’re not authorized to be within the territory of the United States and are living outside of U.S. laws.
The only way parents can be subject to U.S. law is if they’re here legally. If they’re here illegally, then it’s impossible for them to be subject to U.S. law. It’s a complete contradiction. At least, that will be the argument. The courts may ultimately decide differently.
The idea that illegal immigrants are covered by the 14th Amendment is not a closed case. The Trump Administration or Congress should pursue challenging birthright citizenship for illegals. If citizens of other nations want their children to be U.S. citizens, then they should migrate here legally. It’s a ridiculous notion that all anyone has to do is sneak across the border and illegally reside here in the shadows.
If they want to be subject to U.S. law, then before giving birth, they’ll need to surrender to ICE. This, though, may get them deported, unless they are Obama dreamers, of course.
The left went hyperbolic over the travel ban. Ultimately, the Supreme Court ruled in Trump’s favor. It wouldn’t surprise me if the birthright ban is allowed as well.