Baby battle Can President Trump, under the U.S. Constitution, eliminate birthright citizenship for children born on U.S. soil?
Trump’s power to end birthright citizenship is questionable
Q: President Trump intends to issue an executive order to eliminate birthright citizenship for children of unauthorized immigrants born on U.S. soil. How are such children now considered U.S. Citizens?
A: The first sentence of the 14th Amendment to the U.S. Constitution 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.” This concept is based on “jus soli” — “right of the soil” — meaning any child born in the U.S. has a claim to citizenship.
Q: Why was this provision included in the 14th amendment ?
A: In 1865 the U.S. Supreme Court ruled in the Dred Scott case that all people of African ancestry — slaves as well as those who were free — could never become citizens of the United States. Because of this ruling three years later the 14th Amendment was ratified. This first sentence made it clear the Dred Scott case was overturned and black Americans were deemed U.S. citizens.
Q: On what basis does President Trump maintain he now can prevent the children of unauthorized immigrants who are born on U.S. soil from automatically becoming U.S. Citizens?
A: President Trump indicated he intends to strip birthright citizenship from such children by issuing an executive order. He maintains this clause in that first sentence of the 14th Amendment, “subject to the jurisdiction thereof,” gives him the power to prevent such children from becoming U.S. citizens at birth.
Q: Does the President actually have this power to unilaterally eliminate this right and thus deny U.S. citizenship for these children?
A: The 14th Amendment was adopted shortly after the Civil Rights Act of 1866. That act specifically withheld birthright citizenship from the American-born children of foreign diplomats present in the U.S. The act did so because international law grants diplomats and their families immunity from most U.S. laws. Thus they were not “subject to the jurisdiction” of the U.S. This same citizenship-limiting clause also applied to various members of Indian tribes whose political relationships with the U.S. also limited U.S. authority/jurisdiction over members of the those tribes. Thus the exception, “subject to the jurisdiction thereof,” applied in both of these instances. Whether additional exceptions could be created by the president and/or Congress, without amending the Constitution, has been the subject of debate. Did this clause mean children born to Chinese immigrants, who at one time were prevented by law from becoming naturalized citizens, were denied their birthright citizenship? Did it also include Native Americans born on sovereign reservations? These questions were addressed in the 1898 U.S. Supreme Court case United States v. Wong Kim Ark. The court said, among other things, the common law concept of jus soli should be applied to the 14th Amendment. The Congressional Research Service characterizes the decision thusly: “The Court held that the Fourteenth Amendment affirmed the traditional jus soli rule, including the exceptions of children born to foreign diplomats, to hostile occupying forces or on foreign public ships, and added a new exception of children of Indians owing direct allegiance to their tribes. It further held that the ‘Fourteenth Amendment ... has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship’ and that it is ‘throughout affirmative and declaratory, intended to allay doubts and settle controversies which had arisen, and not to impose any new restrictions upon citizenship.” In other words, the 14th Amendment excludes only children born to diplomats or hostile occupying forces and those born on foreign public ships. Based on this Supreme Court decision it appears neither the president nor Congress has this authority. Instead, an amendment of the Constitution would appear to be required to eliminate the birthright to citizenship for children of noncitizens and unauthorized immigrants born on U.S. soil.