Trump to remove birthright citizenship for children of noncitizens, prompts Constitutional uproar
“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 United States for 85 years with all of those benefits,” Trump told Axios in an interview taped on Monday. “It’s ridiculous. It’s ridiculous. And it has to end.”
While Trump was ambiguous on the subject, it is likely that the children of legal immigrants who have attained US citizenship will be unaffected by the planned policy order.
In the US, birthright citizenship is guaranteed by the 14th Amendment to the Constitution, which 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.” While originally drafted in 1868 to establish civil rights for freed slaves and their descendents, the amendment has been widely interpreted to grant full citizenship rights to anyone born within the US.
"It was always told to me that you needed a constitutional amendment,” Trump told Axios. “Guess what? You don't.”
“It’s in the process. It’ll happen . . . with an executive order,” he said.
If Trump intended to press ahead with the executive order, the president would likely face a complete and total backlash.Trump’s critics immediately sounded the alarm on Twitter.
If the 14th Amendment’s guarantee of birthright citizenship could be wiped out with the stroke of Trump’s pen, the whole U.S. Constitution could be erased that way. There’s no limit to that dictatorial claim over all our rights. https://t.co/hfFfsDOAJL— Laurence Tribe (@tribelaw) October 30, 2018
Already tested in the courts and SCOTUS reaffirmed repeatedly that its interpretation of the 14th Amendment is that anyone born in the US is a citizen regardless of their parents’ legal status. And that’s also how authors of the 14th Amendment saw it. https://t.co/Z4WAnCZi3vhttps://t.co/Qi2RCudZyz— Tim O'Brien (@TimOBrien) October 30, 2018
GO BACK TO SLEEP! DON'T WATCH THE NEWS. YOUR HEAD WILL EXPLODE.Trump now asserts the right to repeal the 14th Amendment through executive order. https://t.co/uHbVq77bxHThat's after he tweets a massive military response to an "invasion" of Guatemalan children.NOT. NORMAL. pic.twitter.com/KQfEL3RH0Z— Peter Daou (@peterdaou) October 30, 2018
You can’t alter the Constitution by executive order. You want to repeal the 14th Amendment, you do it the old fashioned way: By having enough racist hacks on the Supreme Court to render the constitutional rights of people of color meaningless. https://t.co/jkXx48pCEy— Student Loans 🍝 (@AdamSerwer) October 30, 2018
While Trump can issue an executive order on birthright citizenship, that order can then be challenged in court, and overturned if it is found unconstitutional. This was the case earlier this year and last year when the first iterations of the president’s controversial travel ban were declared unconstitutional by federal courts.
Any executive order issued by Trump would therefore have to fall within the boundaries set by the Constitution, and the Supreme Court would have to determine whether the text of the 14th Amendment actually guarantees birthright citizenship, a matter of intense debate among legal scholars.
“A proper originalist interpretation of the US Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions,” lawyer Dan McLaughlin wrote in a National Review column last month.
However, McLaughlin noted that one line in the Amendment - “and subject to the jurisdiction thereof” - could cause some ambiguity. If Congress were to decide that illegal immigrants are not subject to the jurisdiction of the United States, then the case could be made that the protections of the 14th Amendment do not apply to them. Indeed, at the time of the Amendment’s writing, Senator. Lyman Trumbull argued that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else,” for example, a foreign country.
Trumbull’s interpretation has been used by opponents of birthright citizenship, like legal scholar Edward J. Erler, to argue against automatic citizenship, but the text of the Constitution can be endlessly dissected and analyzed for different answers.
Some scholars have called for Congress to finally legislate on whether the children of noncitizens are subject to US jurisdiction or not, and end the debate for good.
In a Washington Post op-ed this July, former Trump administration national security official Michael Anton called for such legislation, and argued that “the notion that simply being born within the geographical limits of the United States automatically confers US citizenship is an absurdity — historically, constitutionally, philosophically and practically.”
With immigration a top priority for Republican voters, some saw the President’s statement as bluster, intended to fire up his base ahead of next week’s crucial midterm elections.
Donald Trump CANNOT end the 14th Amendment by Executive Order. Period. And he is only announcing this bigoted bullshit 7 days before the election to fire up his base. It's all bogus.— Shaun King (@shaunking) October 30, 2018
Birthright citizenship is enshrined in the 14th Amendment. Trump can't just sign that away. I'm not suggesting this should be ignored (b/c god knows if anyone will try it, it's him), but I think it would be wise to view this as an agenda-setting effort 1 week before midterms. https://t.co/dEvBUXCx9r— Caroline O. (@RVAwonk) October 30, 2018
Trump has touted a hardline approach to immigration in recent weeks, as a thousands-strong ‘caravan’ of migrants makes its way to the US’ southern border from Central America. Trump has called the caravan an “invasion” and the Pentagon has announced plans to deploy 5,200 troops to the border, where they will bolster the existing National Guard and Customs and Border Patrol presence.
Trump has also vowed to corral the migrants into “very nice”tent cities upon arrival, where they will be held until their asylum cases can be heard.
While the president claimed the US is “the only country” that offers birthright citizenship, 33 other countries, including Canada, Brazil, Mexico and Argentina, do the same.
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