Exclusive: Trump to terminate birthright citizenship

President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for "Axios on HBO," a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.

Why it matters: This would be the most dramatic move yet in Trump's hardline immigration campaign, this time targeting "anchor babies" and "chain migration." And it will set off another stand-off with the courts, as Trump’s power to do this through executive action is debatable to say the least.

Trump told Axios that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said, declaring he can do it by executive order. When told says that's very much in dispute, 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."

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits," Trump continued. "It's ridiculous. It's ridiculous. And it has to end." "It's in the process. It'll happen ... with an executive order."

The president expressed surprise that Axios knew about his secret plan: "I didn't think anybody knew that but me. I thought I was the only one. "

Swan had been working for weeks on a story on Trump’s plans for birthright citizenship, based on conversations with several sources, including one close to the White House Counsel’s office. The story wasn’t ready for prime time, but Swan figured he'd spring the question on Trump in the interview.

The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:

"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."

Be smart: Few immigration and constitutional scholars believe it is within the president's power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.

But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas. John Eastman, a constitutional scholar and director of Chapman University's Center for Constitutional Jurisprudence, told Axios that the Constitution has been misapplied over the past 40 or so years. He says the line "subject to the jurisdiction thereof" originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.

Michael Anton, a former national security official in the Trump administration, recently took up this argument in the Washington Post.

Anton said that Trump could, via executive order, "specify to federal agencies that the children of noncitizens are not citizens" simply because they were born on U.S. soil. (It’s not yet clear whether Trump will take this maximalist argument, though his previous rhetoric suggests there’s a good chance.) But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be "unconstitutional."

Between the lines: Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants, Eastman said.

Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call "anchor babies" — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.

The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.

The bottom line: If Trump follows through on the executive order, "the courts would have to weigh in in a way they haven't," Eastman said.

The full interview will air on "Axios on HBO" this Sunday, Nov. 4, at 6:30 p.m. ET/PT.

There is only one Supreme Court decision on whether children born in the U.S. to alien parents are birthright citizens. That decision is United States v. Wong Kim Ark. It concerned a child born in the U.S. to legal permanent residents. The Court ruled that it was long established in the English common law, and continued by the states and federal government, that birthright citizenship extended to all persons born in the U.S. regardless of the citizenship status of their parents, with only a few exceptions. The exceptions concerned children of aliens who are diplomats and children of aliens born in territories occupied by foreign armies.

Regardless of its discussion of the English common law legacy of our country, the decision is silent with respect to children born to aliens here on temporary visa and to aliens who are here illegally.

Indeed, while the decision can be viewed as covering everybody born here except for two exceptions, it is clear that it is assumed that the person born here is body politic of the country, subject to the same rights and responsibilities of citizens, being protected by and owing allegiance to the state. Children of parents who are here illegally or who are here only for the short time that their parents are here, cannot be presumed to be part of the body politic.

In addition, the Supreme Court cites, without criticism, a case where a person born here, who married a British officer and relocated with her husband to England following the Revolutionary War. This person, though born here, was viewed as a British subject and not as a U.S. citizen.

In any case, it wasn’t until the 1960s that illegal immigration and anchor babies became an issue in this country. It never was a problem beforehand in this country or in England prior to our independence. This is truly a novel issue and it would be good for the Supreme Court to have an actual case so the controversy can be resolved.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof,”

ShadiwAce, you bolded the first phrase of the quote above from the 14th Amendment. However, the second phrase is the key to this entire matter. One must not only be born here, one must also be subject to the jurisdiction of the United States in order to be a citizen. That phrase has never been directly litigated at the level of the Supreme Court. There was dicta from uber-liberal Justice Brennan to the effect that anyone born here is a citizen, and both the Left and the Chamber of Commerce types have latched onto that ever since (with, of course, the acquiescence or outright cooperation of Presidents ever since).

It is beyond question that the United States Congress has the ability to pass a bill which, if signed into law by the President or if his veto is overridden, would become law, which law would specify who is and who is not subject to the jurisdiction of the United States. It should be noted that during the floor debate over passage of the 14th Amendment, the author of the amendment specifically indicated that children of foreign diplomats would not be citizens, because they were not subject to the jurisdiction of the United States. He was asked that question because many of his fellow congressmen believed that the language could be interpreted very broadly (and surprise, surprise, it has been), but at least no one has tried this with the children of foreign diplomats. A simple statement in the law that the child of two parents who were not both citizens, both permanent residence, or a combination thereof would not be subject to the jurisdiction of the United States would end the entire anchor baby problem instantly.

As for those who are already citizens because they were born here to illegals or two those without permanent resident status, because the Congress did not act, I do not believe that a retroactive revocation of their citizenship will pass muster in the courts, including the Supreme Court. However, if you eliminate anchor babies when Trump signs a bill doing so into law, the problem ends immediately. The incentive to get into the United States, especially for women who are six or more months pregnant, is dramatically reduced, as will be the volume of cases being heard in our immigration court system.

With regard to the subject matter of this thread, the apparently impending Executive Order to be signed by the President, I am not sure that he can do this and have it be upheld in the courts. Certainly, the Ninth Circuit or some other Leftist Circuit will overrule it, so the real question is not that, but whether the Supreme Court will back him up. On the one hand, he is not actually introducing or rewriting the law, he is just interpreting it for employees of the executive branch. In that sense, there is a powerful argument to be made for the proposition that the order would be constitutional. On the other hand, since this is an action that would affect the rights of literally millions of people, there is a significant possibility that the courts will give a thumbs down on it. However, even if the latter situation occurs, in a way this would be good. Trump is accustomed to playing 3-D chess when it comes to putting together business deals, and he has learned well how to do the same in politics. If he loses in the courts, he first of all will have solidified his credibility with his base. He will have also restarted (or just plain started) the debate over birthright citizenship, which everybody else seems to want to sweep under the rug. He will then be able to hand-deliver legislation to the Congress on this issue. Such legislation will either be passed, in which case he and we are big winners, or it will not. If it does not pass in this upcoming session of Congress, then he has a phenomenal issue for the 2020 election. Further, from the very moment that he signs the Executive Order until the 2020 election, the entire Left will be running around screaming with their hair on fire (well, more than they already are, if you can imagine that). This will enable him to accomplish many more things in other areas without the other side paying much attention, because they will be hyper-focused on this issue like cat chasing a laser beam.

All things considered, I think that this is a masterstroke. He either gets what he wants pretty much right away, or has a phenomenal issue going into the 2020 election (which starts a week from tomorrow morning). Either way, the 20% were so of people in the middle on most political issues will get another taste of the utter insanity of the Left, and be able to compare and contrast that with the sensible, pro-American policies of the Republican Party. Whether it occurs in this two-year cycle, or when Congress is seated in 2021, I am firmly of the belief that we are on the verge of seeing the end of the abuse of the Fourteenth Amendment’s citizenship clause. We are nearly at the end of the era of uncontrolled immigration which started in 1965, and that is cause for immense celebration and gratitude.

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