Posted on 01/23/2025 8:20:35 PM PST by SeekAndFind
Within days of taking office, President Donald Trump signed an executive order that has been misconstrued by most of the talking heads out there as "ending birthright citizenship." This characterization uses an overly broad brush to paint over what is actually an extremely nuanced issue with regard to the interpretation of citizenship in the 14th Amendment.
Section 1 of the amendment starts off with one of the most consequential lines of any of the Reconstruction Amendments passed in the wake of the Civil War: "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."
What Trump's executive order does is limit the interpretation of that line in the legal sense. In the order, Trump directs the government not to legally (through documentation, etc.) recognize the citizenship of anyone "(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth."
In other words, if the parents are not in the United States legally, then the child is not automatically granted citizenship.
The executive order was immediately challenged in court in several states, with groups like the ACLU latching themselves onto the cause, and the Trump administration has already lost in at least one federal court. The judge in that case strongly rebuked Trump's actions.
"I’ve been on the bench for over four decades," Senior U.S. District Judge John C. Coughenour said. "I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."
Coughenour (probably) has a point. The president cannot unilaterally reinterpret an amendment, especially on a question that the Supreme Court had previously settled. But the Trump administration isn't seeking to just unilaterally change things. It appears his team wants to take this all the way back to the Supreme Court.
But why?
The Supreme Court answered the question of birthright citizenship in the late 1800s, in United States v. Wong Kim Ark. Wong Kim Ark was born to parents who were legal residents, though not U.S. citizens, living in San Fransisco at the time. The family left America, though Wong came back and was denied entry into the country.
He sued, claiming he was a citizen, and the case went before the Court. Here is what they found:
The question comes down to one particular phrase in the amendment: "subject to the jurisdiction thereof." The Court interpreted it, like most do, to mean that everyone born in the U.S. was automatically "subject to the jurisdiction thereof," making them legal citizens. Some legal scholars, who agree with the Trump administration, argue that it means only those who are "subject to the jurisdiction thereof" (meaning those whose families are legally in the United States) are recognized as citizens.
The Trump administration could push this ahead, fighting to keep the issue alive all the way to the Supreme Court, forcing the current Court to re-evaluate what the previous Court ruled.
There are really two ways that the change to our interpretation of birthright citizenship can happen. The first is through an act of Congress, which will probably never happen. The second is to get the Supreme Court to amend or overturn its previous ruling, which is difficult but not impossible.
There are two objectives here:
If the Trump administration can convince the Justices to narrowly re-define the legal interpretation of the 14th Amendment, then his executive order will, in fact, have worked - even if the process by which he got there skirted the lines of constitutionality in the first place.
Trump's problem is that he has essentially, two years to get things done. The midterm elections could result in Democrats retaking the House or Senate, and if that is the case, then he loses the opportunity to get much more of his agenda accomplished. Getting Congress to devote time to birthright citizenship takes away from his ability to get other things done, so he has to take the long way around - through the courts, that is.
He certainly could pull it off. He has just the right Supreme Court makeup to have a chance. The originalists on the Court will undoubtedly take a look at the fact that the original intent of the 14th Amendment was to apply to people legally in the U.S. (a fact that is in the congressional record, if you go and read up on what the authors of the amendment were discussing at the time). But it's still a tall order.
In all honesty, I'm not convinced it's the battle we should have right now. There are more immediate and critical needs in the fight to fix the immigration issue than to tackle birthright citizenship. However, it is something he promised, and he wants to deliver on it.
It's one of those long-game plans. This will have very little impact in the near future, but could work long-term to dissuade birth tourism in the U.S. For immigration hawks, it's a vital piece of the strategy to reshape how America controls its borders and protects its citizenry.
MDL are for factually complex cases where there are enough common factual issues that it would inefficient to waste judicial resources with all the various circuits and districts wading through massive discovery issues, with potentially conflicting rulings etc.. They have never been used for purely legal disputes. At least not that I've ever heard of.
We will see
We’ll see if there is a circuit split. I’m doubtful.
If there is not, I predict the USSC will not hear the case.
Of course they should have. Colonial and American law were based on English Common law - which is still occasionally cited even today in some cases - not on the European Civil law practiced in the rest of Europe. That is one of the defining characteristics of our legal system. And English Common law at the time of independence - which is what matters - was just soli.
What the rest of Europe did then and does today is legally irrelevant.
Until there is a diffinitive high court ruling, Trumps EO should stand.
From the UK Govt:
A child who is born in the UK will not automatically be a British citizen. A child will acquire British citizenship by birth if they are born in the UK to a parent who is either a British citizen or who has a form of settled status, such as indefinite leave to remain, at the time of the birth.
Just think, if Ark had been elected President when he passed the age of 35, he would have been the Commander-in-Chief of all the nation’s armed forces while still being a subject of the Chinese Emperor!
With the election of Obama, and, more specifically and perhaps more frighteningly, with the example of Harris but for a successful election, this situation can still occur.
What matters is what it was at the time we separated from England, because that was the default law followed by every colony, and by the new United States except where superceded by statute or the Constitution.
You can disagree if you'd like, but there are absolute boatloads of U.S. legal precedent discussing the relevancy of pre-independence English Common law when interpreting the Constitution.
Just as one really basic example, read the Supreme Court's 2nd Amendment decision in Heller. In that case, Scalia engaged in an extensive analysis of pre-independence English Common law principles and definitions to help determine the scope of the Second Amendment. Not a peep about continental European law, or current practices in England, because neither was relevant.
Did you feel the same about all the EO's issued by Obama and Biden that were struck down by lower courts?
Mr. HOWARD. I was a member of the same committee, and the Senator's observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power....
And so they put the matter beyond the legislative power. It was put in the Constitution where it also resides beyond the executive power.
It lies within the power of the people to amend it if they don't like it.
President Chester Arthur became Vice President and then President after being born to an alien father.
Senator Howard, author of the citizenship clause, in debate upon his introduction of the clause:
Mr. HOWARD. ... This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.- - - - -
Mr. HOWARD. ... We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power....
And so they put the matter beyond the legislative power. It was put in the Constitution where it also resides beyond the executive power.
It lies within the power of the people to amend it if they don't like it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.