President Donald Trump has a credible argument for getting rid of birthright citizenship, but the issue will ultimately be decided by the courts.
It did not take long for the litigation lollapalooza to light up.
Within hours of his inauguration, roughly two dozen states sued President Donald Trump over his executive order denying automatic citizenship to U.S.-born children of parents who are here illegally.
The various state attorneys general who are suing dismissed his action as a flagrantly unlawful assault on the Constitution, while confidently assuring us that the president’s order would be struck down in court under the plain meaning of the 14th Amendment.
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Not so fast.
As I explained Tuesday morning on Fox News, Trump has a credible and defensible argument that the amendment was never intended to apply to people who broke the law by coming here fraudulently or illegally.
Granted, it may present a considerable challenge for Trump in the courts. But he has initiated a reasoned debate that is worth having. Ultimately, it will be up to the U.S. Supreme Court to further define the parameters of what the authors of the 14th Amendment intended.
Let’s begin with the text of the Citizenship Clause itself:
“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.”
The operative phrase, “subject to the jurisdiction thereof,” is at the heart of Trump’s justification on birthright citizenship. What does it mean?
As our nation’s chief executive who is duty-bound to enforce all laws, Trump interprets that constitutional provision narrowly. That is, illegally present aliens are not “subject to the jurisdiction” of the U.S. because they presumptively maintain political allegiance to another sovereign as citizens of that foreign power.
Simply put, the mere act of setting foot on U.S. soil does not necessarily constitute allegiance or otherwise “subject” an individual to complete American jurisdiction.
The legislative history of the 14th Amendment supports this point. It was ratified after the Civil War in 1868. Its sole objective was to grant citizenship and full rights to formerly enslaved people. There is little evidence that Congress and the states meant to extend citizenship to children of diplomats, temporary students, tourists, and illegal aliens.
While it is true that everyone here must abide by U.S. laws under our principles of territorial jurisdiction, that is not the same thing as political jurisdiction. Senator Lyman Trumbull, who was a moving force behind the 14th Amendment, specifically stated that the Citizenship Clause does not encompass individuals still subject to any foreign power or owing allegiance thereto.
Supporters of birthright citizenship for illegal migrants often cite — and misinterpret — the 1898 Supreme Court ruling in United States v. Wong (169 U.S. 649) involving a child born in the U.S. However, his parents, originally from China, were here lawfully and permanently. The high court’s decision pivoted on that distinguishable fact.
The ruling in Wong does not stand for the proposition that citizenship is automatically conferred to the children of parents who are here in the United States illegally. Their citizenship derives from the home country of their mother and father.
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More directly relevant are two other Supreme Court cases in which the Justices explained the original intent behind the 14th Amendment. Its qualifying phrase, “subject to the jurisdiction thereof,” excludes citizens of foreign countries born in the U.S. (The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 1872; Elk v. Wilkins, 112 U.S. 94, 1884)
For far too long, our government has been granting citizenship documents based on an understanding of the 14th Amendment that is, at best, unclear, if not erroneous. Congress could have clarified it, but has consistently failed to do so.
By his executive order, President Trump has finally set in motion a contentious issue that will now be determined in courts of law. Lest we forget, it is the primary function of the Supreme Court to interpret the Constitution and to resolve disputes such as this.
Trump’s critics are wrong in claiming that he is abusing power. As noted above, he is properly asserting it and moving the matter forward for judicial review.
This is precisely what our Founders intended when they constructed a unique government of checks and balances.
Predictions of Trump’s defeat — as usual — are premature.
