No, the pres­i­dent can’t end birthright cit­i­zen­ship

The Oklahoman (Sunday) - - OPINION -

In an in­ter­view for “Ax­ios on HBO,” Pres­i­dent Trump an­nounced he will sign an ex­ec­u­tive or­der end­ing birthright cit­i­zen­ship. When chal­lenged on the con­sti­tu­tion­al­ity of do­ing this by ex­ec­u­tive or­der, Trump replied:

“You can def­i­nitely do it with an act of Con­gress. But now they’re say­ing I can do it just with an ex­ec­u­tive or­der.”

This is sim­ply un­true. The 14th Amend­ment, which de­clares, “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,” can­not be changed by ex­ec­u­tive or­der, or even by an act of Con­gress. It would re­quire a con­sti­tu­tional amend­ment.

Not long ago, Trump re­voked for­mer Pres­i­dent Barack Obama’s De­ferred Ac­tion on Child­hood Ar­rivals be­cause, as he cor­rectly pointed out, it was an un­con­sti­tu­tional ex­ec­u­tive over­reach. Now he wants to at­tempt to change the Con­sti­tu­tion by ex­ec­u­tive or­der?

Some con­ser­va­tives jus­tify his pro­posed ac­tion by tak­ing a loose read­ing of the

14th Amend­ment, ar­gu­ing that the phrase “sub­ject to the ju­ris­dic­tion thereof” leaves birthright cit­i­zen­ship sub­ject to in­ter­pre­ta­tion. Many of these same con­ser­va­tives (cor­rectly) bri­dle at the idea that the phrase “A well reg­u­lated Mili­tia, be­ing nec­es­sary to the se­cu­rity of a free State” in any way un­der­mines the fun­da­men­tal right of pri­vate ci­ti­zens to keep and bear arms. Ap­par­ently, some on the right are strict con­struc­tion­ists when it’s con­ve­nient but sud­denly dis­cover their be­lief in a “liv­ing Con­sti­tu­tion” when it serves their pol­icy pref­er­ences.

As the Amer­i­can En­ter­prise In­sti­tute’s John Yoo ex­plains, the orig­i­nal­ist read­ing of the 14th Amend­ment is the cor­rect one:

“The 14th Amend­ment’s ref­er­ence to ‘all per­sons born or nat­u­ral­ized in the United States, and sub­ject to the ju­ris­dic­tion thereof’ refers to chil­dren who are born in U.S. ter­ri­tory and are sub­ject to Amer­i­can law at birth. Al­most ev­ery­one present in the United States, even aliens, come within the ju­ris­dic­tion of the United States. If the rule were oth­er­wise, aliens present on our ter­ri­tory could vi­o­late the law with im­punity . ... The orig­i­nal pub­lic mean­ing of the 14th Amend­ment— which con­ser­va­tives prop­erly be­lieve to be the lodestar of con­sti­tu­tional in­ter­pre­ta­tion — af­firms birthright cit­i­zen­ship.”

Yoo fur­ther points out the high court has up­held this view of the 14th Amend­ment:

“United States v. Wong Kim Ark (1898) up­held the Amer­i­can cit­i­zen­ship of a child born in San Fran­cisco to Chi­nese par­ents, who them­selves could never nat­u­ral­ize un­der the Chi­nese Ex­clu­sion Acts. The court held that ‘the Four­teenth Amend­ment af­firms the an­cient and fun­da­men­tal rule of cit­i­zen­ship by birth within the ter­ri­tory, in the al­le­giance and pro­tec­tion of the coun­try, in­clud­ing all chil­dren here born of res­i­dent aliens.’ It also ex­plic­itly re­jected the ar­gu­ment that aliens, be­cause they owed al­le­giance to a for­eign na­tion, were not within ‘the ju­ris­dic­tion’ of the United States.”

The prece­dent is so clear. And even if Trump could change the 14th Amend­ment in Obama-es­que fash­ion with his pen and phone, that is the last thing Re­pub­li­cans should want to do — both as a mat­ter of law and a mat­ter of prin­ci­ple. Be­cause, as Yoo points out, the 14th Amend­ment is one of the Re­pub­li­can Party’s great his­toric achieve­ments:

“Af­ter the Civil War, con­gres­sional Re­pub­li­cans drafted the 14th Amend­ment to cor­rect one of slav­ery’s grave dis­tor­tions of our law. In Dred Scott v. San­ford (1857), Chief Jus­tice Roger Taney found that slaves, even though born in the United States, could never be­come ci­ti­zens. The 14th Amend­ment di­rectly over­ruled Dred Scott by declar­ing that all born in the U.S., ir­re­spec­tive of race, were ci­ti­zens . ... ”

Re­pub­li­cans should not be weak­en­ing the Con­sti­tu­tion with the same kinds of loose in­ter­pre­tive doc­trines that lib­er­als use to jus­tify their fa­vored pol­icy out­comes. The way to pre­vent il­le­gal im­mi­grants from ob­tain­ing birthright cit­i­zen­ship for their chil­dren is pre­vent them from en­ter­ing the coun­try il­le­gally in the first place. Strengthen bor­der se­cu­rity. Build the wall. But leave the Con­sti­tu­tion alone.

Marc Thiessen

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