Donald Trump sometimes kind of wanders during interviews and speeches. Lately he said that we need to do something for the Dreamers and he wants to end birthright citizenship and deport all illegal aliens. Well, who knows what's in his mind. I sure don't. On birthright citizenship, though, there may be some glimmers of understanding. He says he'll do it by executive order "if he can" but that it might be something the people have to do. I can tell him that he can't do it by order. The 14th amendment was designed specifically to keep Congress, let alone the President, from depriving anyone born here to a parent legitimately present from citizenship. Even this Supreme Court isn't going to reverse all that case law. That's Wong Kim Ark. But. There is no case squarely ruling on whether a person born here to two illegal aliens is a U.S. citizen. Hitherto, the State Department has just assumed that this is the law but as I say, it isn't clear. I'm not sure how the issue will come up. I thought a nasty Texas case a few years ago where the state refused to issue a birth certificate to a child of illegal aliens would get us a ruling but that case somehow settled. I think the most likely scenario would be the adult child of two undocumented residents applies for a passport and is refused. For that to happen, State would have to change its policy. We are talking only about a child both of whose parents are not legally in the country. If either is legal, even on a tourist visa, there's no doubt.
Trump may or may not be able to do it unilaterally. It depends on what the courts would do. As far as birthright citizenship, the Constitution--including the 14th Amendment--says what the Supreme Court says it does. They wanted to ignore "regulated militia" in the 2nd, so they did. If they want to reinterpret the 14th, they will. Trump is also saying people should expect that American citizens will be deported along with other residents.
No, I don’t think so. The "well regulated militia" clause hadn't been interpreted with the thoroughness of the 14th amendment citizenship clause. This is not the first time the Supreme Court has had an ideological bent. Indeed, throughout my life, the Court was very active and, I think, reached a dangerous level of deciding cases based on what they thought were "good ideas" rather than extending existing law using established tools of legal interpretation. This Court hasn't really done that. If you want to see what I mean, read all of the opinions in Dobbs. The Justices as a body won't go totally off the rails.
Speaking of which, did you read the Heller case? Scalia used the same approach there as he used in the Confrontation Clause cases. Scalia was about as Right Wing as you could get yet he recovered a major constitutional right protecting defendants.
Having said all that, I can't say absolutely that the 14th amendment applies where both parents are illegal aliens. There's no case right on point. But I can tell you that there's a lot of legislative history and there's not much doubt that Congress knew what they were doing when they presented the amendment to the states. They had a clear understanding of the phrase "subject to the jurisdiction thereof" and illegal aliens are subject. So would their child be subject. Now, would a constitutional amendment pass? Hard to see how.
I am pretty sure how I think it should turn out. Those children born inside the United States to rwo undocumented parents are U.S. citizens and nothing the President or Congress can do can change it. The clause Trump wants to invoke is "subject to their jurisdiction". I don't think this is rocket surgery. If an undocumented immigrant can be charged and convicted of a crime by state or federal authorities, that immigrant is "subject to their jurisdiction" by definition and his child, born here, is automatically a U.S. citizen. My uncertainty comes from the fact that no court that I'm aware of has ever used this obvious legal test.
The situation appears to be one where bold proclamations are being made to send a clear message across borders: those planning to travel to the U.S. should be on alert. While the rhetoric may be loud and alarming, actual enforcement actions are coming, and they will likely be intense and unsettling for many. These actions will be heavily covered by the media, amplifying the message in an effort to discourage undocumented migration. The goal seems to be for people to halt crossing the borders to the US, and self-deport before the government resorts to more aggressive removals. One notable or possible point is that children born in the U.S. will retain their citizenship rights and be able to return and claim those rights. This situation brings to mind the example of Bruce Lee, who was born in the U.S. to Chinese parents(legally in the US at the time, touring artists), returned to Hong Kong, and later returned to the U.S. as a citizen. It's expected that the authorities will push the limits of the law, possibly bending it, to achieve their objectives. Meanwhile, immigrant advocacy groups, along with others, are likely to resist these actions and file legal challenges in an attempt to limit their scope and impact.
A non-legal, personal value: if you're born here and are not otherwise exempt from being under the jurisdiction of the United States (like those with diplomatic immunity), then you're a U.S. citizen by birth. No exceptions. Glad you're here.
When parents are deported, the emotional and psychological toll on their child can be devastating. Even if the child is a U.S. citizen, being separated from their parents is a heartbreaking experience. While the child retains the right to stay in the U.S. as a citizen, the pain of separation can be overwhelming. If the family is forced to leave, the child has the right to return to the U.S. at any time, given their citizenship. However, the path to reunification can be long and difficult, and the child may face many challenges before that happens. This situation raises important questions about how we can balance the legal framework with compassion for the children caught in these heartbreaking circumstances. It’s crucial that we consider not just legal rights, but also the well-being and future.
