Trump Wants to Ban Birthright Citizenship

Discussion in 'Political Discussions' started by Ted Heiks, Oct 31, 2018.

  1. Ted Heiks

    Ted Heiks Moderator and Distinguished Senior Member Staff Member

    According to my local paper, The Port Clinton News-Herald, he wants to ban birthright citizenship. By executive order. Can he do it?
  2. decimon

    decimon Well-Known Member

    Blanket birthright citizenship. Coming here for the purpose of delivering a baby to be a U.S. citizen is fraud.

    Lindsey Graham has called for legislating the same.

    They can probably force a SCOTUS decision.

    BTW, the SCOTUS is not the only branch that can determine what is constitutional. All three branches have such responsibility.
  3. Maniac Craniac

    Maniac Craniac Moderator Staff Member

    If any President can nullify any part of the Constitution via Executive Order, then the entire Constitution is moot. We'd have, by definition, a dictatorship and I don't think it's hyperbole to say so.

    Being not a constitutional scholar, myself, I find the wording of the 14th Amendment somewhat open to interpretation.

    "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."

    My eyes zoom right into the part where it says "and subject to the jurisdiction thereof." One could argue that absolutely any person who steps foot onto U.S. territory is subject to its jurisdiction, whether or not they are citizens. However, that would make the two conditions redundant. Then again, "jurisdiction" could be understood in an official sense- that to be under the jurisdiction means to have some form of official status, say, having a temporary work or student visa.

    Mind you, this is all without me having done any research. I'm just thinking away while tapping away at my keyboard and maybe someone who knows more can correct me where I'm wrong.
  4. Kizmet

    Kizmet Moderator Staff Member

    Coming here solely for the purpose of delivering a baby to be a US citizen might be fraud. It also would be virtually impossible to prove.
    Maniac Craniac likes this.
  5. nosborne48

    nosborne48 Well-Known Member

    I've had an interest in this subject for some years and I've read most of the (few) cases on the subject. First let me say that the issue of birthright citizenship isn't as clear as proponents of any view seem to think. I have a few observations, however, for whatever you might think they're worth. First, the pivotal case on the subject of birthright citizenship is Wan Kim Ark and I recommend reading it carefully before anyone forms any opinion.

    Wan Kim Ark concerned the claim of citizenship of a Chinese man born in California to two legal permanent residents. His parents were subjects of the Chinese Emperor and were ineligible to citizenship under the various Chinese Exclusion Acts. The Supreme Court held that the citizenship clause of the 14th Amendment is automatic and requires no Congressional act to be effective. Furthermore, no act of Congress or any State legislature can deprive a person involuntarily of his citizenship if he was born in the U.S "and subject to their jurisdiction." The amendment was drafted that way on purpose.

    Article 1 Section 8 of the U.S. constitution is the only other part of the constitution that deals with citizenship and all it does is grant Congress the power to adopt a uniform rule for naturalization. Congress has done so and has also legislated extensively on the subject of derivative citizenship meaning the requirements for a child born abroad to one or two U.S. citizen parents. Obviously naturalization is different from birthright.

    I found zero authority for the President to do anything at all about deciding who is and who is not a citizen. In this, Speaker Ryan is probably correct. Birthright citizenship cannot be affected by a mere executive order.

    What is less clear is whether Congress could restrict birthright citizenship of the so-called "birth tourism" variety. Here's why:

    Nationality is usually seen as a bundle of rights that the nationals enjoy in connection with their government. That's true; the two big ones are the right to live and work in the national territory and the right to the "protection" of one's government when traveling abroad.

    But nationality is a two way street. The individual citizen owes several duties to his or her government that are not owed to any foreign government. The two big ones for U.S. citizens and nationals are to serve in the armed forces and to pay income tax on all income received world-wide. And to me, THAT'S where the dog lies buried.

    Any individual who is either a U.S. citizen or national and any resident alien, documented or not, owes the U.S. government these two duties. But an alien is considered "resident" if, and only if, the alien possesses a "green card" or resides inside the U.S. for 182 days per year or more. Tourists and other temporary sojourners might have to pay U.S. tax on U.S. source income but not on their world-wide earnings. Furthermore, such temporary "residents" are not liable to military service.

    "Birth tourists" are therefore possibly not "subject to the jurisdiction" of the various governments that comprise the United States and, since a child's domicile follows that of his parents in international law, it follows that the child isn't either.

    This is not to say that I think restricting birthright citizenship this way is a good or bad idea. Most developed countries do restrict it but the common law countries generally have not (though the U.K. has since 1981). I think it would be an administrative nightmare and would work much unnecessary hardship but these are policy arguments, not legal arguments.

    Nor do I think this analysis is necessarily correct. There is case law that suggests that the government cannot discriminate against any person born in the U.S. regardless of the antecedents of the child's parents as a matter of equal protection of the laws. Remember, we are talking about the CHILD'S rights not the rights of the parents. Finally, the U.S. may have an obligation under international law to extend its citizenship to any child born here who would otherwise be stateless.

    The purpose of my over-long post is to point out that all is not as clear as could be wished. Kindly forgive the length of it.
  6. decimon

    decimon Well-Known Member

    That part bothers me because I recall an Englishman and a Canadian drafted into the Army in 1966. I especially recall the Canadian because I mentioned that all he had to do was drive back across the border (he worked in upstate New York) to beat the draft.
  7. nosborne48

    nosborne48 Well-Known Member

    Without knowing those individuals' status in the country, there's no way to answer your question. A surprising number of Canadians are dual nationals for example through having been born in U.S. hospitals right across the border. A dual national inside the U.S. is treated exactly like any other U.S. citizen. For a really nasty version of the problem, look up "Accidental American" in Wikipedia.
  8. decimon

    decimon Well-Known Member

    Okay. The story I had was that if you were resident in the U.S. then you were subject to the draft. But nothing is ever so clear cut, is it? To complicate matters, there were perhaps 15,ooo Canadian volunteers during the Vietnam adventure.
  9. Stanislav

    Stanislav Well-Known Member

    As far as I remember, actus rea for fraud is lying. Coming to US to have a baby, by itself, is incredibly clearly not "fraud".

    Now, many birth tourists do lie in various ways, either to misrepresent the purpose of their visit to get a visa or gain entrance, or to avoid paying full price for medical services. This is already illegal, and already can get you permanently banned from entering the country. However, it is perfectly possible to come here, explicitly to have a baby, without breaking any laws. Biggest trick seems to be proving to the consular officer that you can pay all expenses, and, as usual, that you don't intend to stay in the country illegally.
  10. Stanislav

    Stanislav Well-Known Member

    The fact that visitors are subject to arrest and prosecution strongly suggest to me that they are in fact subjects to US jurisdiction. Unlike diplomats under immunity who do not. Of course, we would not know for 100% sure until Congress actually tried, and it goes to the Supreme Court. Which probably will not happen any time soon.
  11. decimon

    decimon Well-Known Member

    You can't legally enter without reason and this is not reason.
  12. Stanislav

    Stanislav Well-Known Member

    Yep. It is a reason. "Seeking medical treatment, namely childbirth" is a reason. Visa officer would require proof of sufficient funds to cover treatment and living expenses, but it can be done, and is done. AFAIK Chinese agencies (except the most exclusive ones) coach their clients to lie on interviews and conceal a baby bump, but mothers from places like Turkey, South Korea, and Russia are often upfront (at least in this; an employee of one Miami agency got busted last year for forging fathers' signatures on birth certificate applications to speed things up).

    There are a number of Russian celebs who did this one way or another; some likely live in US (it's relatively doable for a celebrity to immigrate. They would use the same process Melania Trump reportedly used, only with less flimsy supporting case). Others do not. One example that stayed with me for some reason is retired Olympic gymnast Svetlana Khorkina giving birth at Mount Sinai in NYC. A twist was that she was a member of Parliament from the Putin's party, so... a bit awkward. There was one Russian fraud case along the similar lines when Russian diplomatic wives applied for Medicaid in NY, including for giving birth. This was fraud, because they stated that the babies were US citizens when they weren't (not under "jurisdiction"), plus they got Embassy payroll to produce phoney docs showing low income.

    Also, "anchor babies" slur is being hurled at almost any foreigner giving birth to US child. I know a number of couples who had babies in US while on various legitimate, nonimigrant stata (F1 grad students, J1 exchange visitors, workers on H1, postdocs on J1 or H1). One couple are fairly close friends of mine; they moved to and naturalized in Canada. Most others gained a Green Card; clearly none used babies as "anchors" (that's not a practical way for legal immigration).

    Remember: I had five distinct interviews to get a visa to US (on 3 different grounds, though never to have a child), and many more border crossings (which is a separate mini-interview in itself; border agent has a right to deny entry even if visa is valid). People who always had a first-world citizenship that grants visa-free entry to virtually any place worth visiting are usually pretty naïve when it cones with seeking permission to enter a country.
  13. Ted Heiks

    Ted Heiks Moderator and Distinguished Senior Member Staff Member

    I remember taking American Government 1 & 2 from Prof. Louis G. Morton, Jr. at Mesa College, now known as Colorado Mesa University, in the Summer Semester of 1981. We had to buy a type-written copy of the Constitution with marginal notes and take Constitution quizzes, of which I and another guy named Ted most often set the grading curve. One of the marginal notes said that there were two types of natural-born citizens: jus soli (citizen of the soil) and jus sanguinus (sp?) (citizen of the blood). Wouldn't that mean that we would need a Constitutional amendment to abolish birthright citizenship?
  14. nosborne48

    nosborne48 Well-Known Member


    This is an originalist argument (coming from ME, no less) but "subject to the jurisdiction thereof" had a common law meaning from England prior to the U.S. Civil War and the 14th Amendment. It excluded ONLY diplomatic persons and members of occupying armies from the "jurisdiction" of the King of England. That was its meaning in 1865 when the 14th Amendment came into force so arguably that is the meaning that is now cast in the amber of the Constitution's text. The very goal behind the text of the Amendment was to place the right to citizenship for those born in the United States forever beyond the ability of any future Congress or any State Legislature to restrict or deny it. So I tend to agree that neither the President nor Congress nor any combination of the two can expand the "jurisdiction" clause beyond its received common law meaning.

    But this IS just a legal opinion. The question will have to come before the Courts for final settlement. Again, read Wan Kim Ark. It's really the best treatment of the 14th Amendment citizenship clause we have to date.
  15. decimon

    decimon Well-Known Member

  16. heirophant

    heirophant Well-Known Member

    Of course he can do it. Then some legal activists will file a court case challenging it, some lower court will announce a stay on enforcing the executive order while its adjudicated, and it will work its way up to the Supreme Court, where I'd guess that his Executive Order would be overturned.

    Here's a brief statement of the legal theory that Trump is apparently operating from:

    As Nosborne says, it all revolves around the words "...and subject to the jurisdiction thereof". Many of the opponents of Trump's proposed move (he may never do it) insist that these words mean anyone who is subject to arrest and trial in the US courts, which includes any foreigners (legal or not) on US soil.

    The counter argument is that

    "This amendment's language was derived from the 1866 Civil Rights Act, which provided that "all persons born in the United States, and not subject to any foreign power" would be considered citizens..." (The 14th Amendment was ratified in 1868 and was intended to normalize the citizenship status of freed slaves.)

    "Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that "subject to the jurisdiction" meant not owing allegiance to any other country..."

    "In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude "children of ministers, consuls, and citizens or subjects of foreign States born within the United States...."

    "This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he "owed immediate allegiance to" his tribe and not the United States..." (Indians apparently didn't become US citizens until the Indian Citizenship Act of 1924.)

    "Most legal arguments for universal birthright citizenship point to the Supreme Court's 1898 decision in U.S. v. Wong Kim Ark. But that decision only stands for the very narrow proposition that children born of lawful, permanent residents are U.S. citizens..."

    While I agree with Trump in wanting to join most of the rest of the world by abolishing "birthright citizenship", I'm rather doubtful whether the Supreme Court will buy this argument.
    Last edited: Nov 1, 2018
  17. nosborne48

    nosborne48 Well-Known Member

    I don't agree that Wan Kim Ark should be read that narrowly. Wan's parents WERE subject to the jurisdiction of a foreign Sovereign, the Emperor of China. Furthermore, many U.S. citizens possess, or are possessed of, another nationality besides being U.S. citizens and that nationality can pass down to their children born here. Some birth nationalities cannot be lost under any circumstances. Again, I urge everyone to remember that we aren't discussing the rights of the parents; we're discussing the rights of the CHILD.
  18. nosborne48

    nosborne48 Well-Known Member

    I also think Elk was wrongly decided. But then again, so was Dred Scott. The U.S. Supreme Court is far from immune to the political pressures and attitudes of the day.
  19. Ted Heiks

    Ted Heiks Moderator and Distinguished Senior Member Staff Member

    Are there any books written on Wan Kim Ark?
  20. nosborne48

    nosborne48 Well-Known Member

    I don't know. Apparently I don't know much, either; somehow I've been calling the case "Wan" Kim Ark when it should be "Wong" Kim Ark. :rolleyes:

    Anyway, the text of the opinion itself will reward the reading.

Share This Page