By Miriam Raftery
November 5, 2018 (San Diego) – President Donald Trump, in an interview with Axios, declared his intention to eliminate birthright citizenship by executive order – a move that reputable legal scholars on both the left and right agree would be unconstitutional. Congressman Duncan D. Hunter (R-Alpine) has previously supported a bill in Congress to similarly end granting citizenship to most children of immigrants born here.
Trump stated, "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order."
But the Fourteenth Amendment to the U.S. is crystal clear that everyone born in the U.S. must be granted citizenship. It 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." Moreover, the Supreme Court has upheld that the amendment does cover children of immigrants, regardless of their parents' legal status.
The 14th amendment was added to override the 1857 Dred Scott v. Sandford decision that denied African Americans citizenship. Children of slaves were granted protection by the amendment, which was written at a time when 13 percent of Americans were immigrants and there were anti-immigrant forces even then.
Thirty years later, when a challenge was raised to citizenship for children of Chinese immigrants, the U.S. Supreme Court reaffirmed that the 14th amendment applies to all children born in the U.S., regardless of their parents’ immigration status.
In that decision, Wonk Kim Ark v. United States, the Supreme Court also made clear that Congress has no right to alter this constitutional protection. The decision states that the high court “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.”
Rep. Hunter (D-Alpine) in 2010 backed a bill that would have limited citizenship only to children with at least one parent who is a citizen, or naturalized resident, or a member of the military. His bill would have stripped not only “anchor babies” or children of undocumented immigrants, but also children born to parents here on travel, work or student visas, refugees and others.
Those seeking to deny immigrant children citizenship focus on the words “subject to the jurisdiction” in the Fourteenth Amendment. But a well-researched article in the Atlantic explains that this does not apply to immigrants.
The article explains, “Foreign citizens are `subject to the jurisdiction’ of our police and courts when they are in the U.S., whether as tourists, legal residents, or undocumented immigrants. Only one group is not `subject to the jurisdiction’—accredited foreign diplomats and their families, who can be expelled by the federal government but not arrested or tried.”
If any constitutional amendment could be changed by a president’s executive order or a simple act of Congress, than no constitutional protection would be save from the political whims of each new Congress or president.
Gun rights, free speech, religious freedom, women’s right to vote, freedom from unreasonable search or seizure and a host of other cherished protections would all be subject to repeal.
Changing the Constitution requires not only a vote by both houses of Congress, but also ratification by legislatures of two-thirds of all states. Our founding fathers made it difficult for a reason, to protect the liberties that Americans hold dear.