Trump is playing with lives of innocent kids
Remember the frenzied debate earlier this week about pipebombs sent to Barack Obama, Hillary Clinton, and CNN? President Donald J. Trump just obliterated that news cycle with a bombshell of his own: a plan to abolish birthright citizenship in the United States. Trump also claimed the US is the only country to grant such a right. This explosive move drew predictable criticism from his opponents, and surprisingly, even from his allies. For instance, House Speaker, Paul Ryan, a staunch Republican, denounced the proposal. And as many have pointed out, some thirty countries grant birthright citizenship, meaning the US is not alone.
So, why are both sides united in their opposition to the president’s threat to abolish birthright citizenship? The answer is simple: birthright citizenship is constitutionally protected and there appears no way for the president to abolish it by issuing an executive order.
President Trump, of course, disagrees with this view, stating: “You don’t need a constitutional amendment for birthright citizenship.”With the greatest respect to the president, the constitutional protection of birthright citizenship is enshrined in the 14th Amendment to the Constitution of the United States. That cannot be undone by an executive order.
First some history: after the end of the Civil War, the 13th Amendment abolishing slavery was ratified in 1865. The citizenship rights of the former slaves were problematic due to the horrible Dredd Scott decision of the US Supreme Court. As a corrective, Congress enacted the Civil Rights Act in 1866 pursuant to the 13th Amendment’s authority “to enforce this article by appropriate legislation.” The Act declared citizenship on all persons born in the US. Thereafter, the 14th Amendment was ratified in 1868, and defined U.S. citizenship in section 1: “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.”
As evident from the text, all persons born in the US are citizens by birth. There has been some confusion caused by the inclusion of the words “subject to the jurisdiction thereof.” Fringe elements have seized on the phrase to claim that the children of illegal immigrants cannot acquire birthright citizenship because they are not subject to the jurisdiction. This view appears to contradict both the drafting history and interpretation of the 14th Amendment by the Supreme Court.
If the plan attains fruition, only the children of citizens or permanent residents would be eligible for citizenship
The SC ruled unequivocally, in the case of United States v. Wong Kim Ark (169 U.S. 649 (1898)), that the only exceptions to birthright citizenship were for “two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”
So, based on the clear text of the 14th amendment and controlling SC case law, children of illegal immigrants are not excempted from birthright citizenship. They are not enemy aliens or children of diplomats and are not subject to the allegiance of a foreign state. In fact, it would be folly to state that children of illegal immigrants have any allegiance at all at birth – they are incapable of giving consent or allegiance.
To be sure, many are uncomfortable with the idea that law-breakers should obtain valuable benefits from such illegality. Hence the resonance of Trump’s idea for abolishing birthright citizenship and the message that “We will not allow our generosity to be abused by those who would break our laws, defy our rules, violate our borders, [and] break into our country illegally.” However, the abolition of birthright citizenship punishes innocents. For instance, many legal immigrants who are on work permits or other visas birth children in the US. Currently, such children become citizens by birthright.
If Trump’s plan attains fruition, only the children of citizens or permanent residents would be eligible for citizenship and tens of thousands of work permit holders – many of whom are from India – would be hit. Moreover, given the massive backlog of permanent residency applications from Indian nationals, Indians would be particularly badly affected. They would be deprived of many benefits like reduced tuition fees for education. Crucially, hurting such children does nothing to stop illegal immigration.
Trump is right to seek a fix for the problem of illegal immigration. However, innocent legal migrants and their children should not become casualties in that fight. Even if a constitutional amendment is attempted to remove birthright citizenship, it should be restricted to those who enter illegally and children of legal migrants should be protected. Legal migrants pay taxes, contribute valuable skills, commit few crimes, and add to America’s rich tapestry. Their innocent children should not be punished on account of illegal activity by others.