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“Attorneys general from 22 states sued Tuesday to block President Donald Trump’s move to end a century-old immigration practice known as birthright citizenship guaranteeing that U.S.-born children are citizens regardless of their parents’ status…
“Ratified in 1868 [in] the aftermath of the Civil War, the 14th Amendment 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.’…
“Trump’s order asserts that the children of noncitizens are not subject to the jurisdiction of the United States. It excludes the following people from automatic citizenship: those whose mothers were not legally in the United States and whose fathers were not U.S. citizens or lawful permanent residents, and people whose mothers were in the country legally but on a temporary basis and whose fathers were not citizens or legal permanent residents…
“In 1898 an important birthright citizenship case unfolded in the U.S. Supreme Court. The court held that Wong Kim Ark, who was born in San Francisco to Chinese immigrants, was a U.S. citizen because he was born in the country. After a trip abroad, he had [been] denied reentry by the federal government on the grounds that he wasn’t a citizen under the Chinese Exclusion Act. But some advocates of immigration restrictions have argued that while the case clearly applied to children born to parents who are both legal immigrants, it’s less clear whether it applies to children born to parents without legal status.” AP News
Here’s our recent spotlight on birthright citizenship. The Flip Side
The left is critical of the order, arguing that it violates the Constitution.
“Trump’s executive order [rewrites] the Constitution by fiat, something the president simply does not have the authority to do…Trump’s executive order on birthright citizenship is an early test of the federal judiciary, and of the extent to which Republican-appointed judges and justices are willing to amend the Constitution from the bench…
“A successful repeal of birthright citizenship would mean the so-called pro-life party creates a class of stateless infants, a shadow caste mostly unprotected by law. It would require Americans to prove their citizenship time and time again, and leave them vulnerable to administrative errors that could endanger proof of their status. These burdens would likely fall disproportionately on those nonwhite people Trumpists see as their ‘replacers.’”
Adam Serwer, The Atlantic
“The order not only includes undocumented immigrants, but also includes legal immigrants whose status is considered temporary. Hundreds of thousands who entered the US legally on student visas, the H-1B program for skilled foreign workers or through refugee programs such as Temporary Protected Status would be subject to the same restrictions…
“[Trump has also] suspended the entire US Refugee Resettlement Program, believing that Biden admitted far too many refugees. Another executive order requires a plan that assigns the Defense Department’s US Northern Command to seal the borders. Other actions canceled thousands of appointments with asylum seekers…
“Trump has never understood or believed that immigrants are part of what makes America exceptional. Each wave of immigration has made its contributions, creating a mosaic of cultures that enliven this nation and expose us to new ways and new thinking. Have there been rough spots? Certainly. Do we need immigration reforms? Undoubtedly. Many Americans are frustrated with levels that seem to be rising beyond this nation’s capacity to adapt. But this is not the thoughtful, humane reform many Americans seek.”
Patricia Lopez, Bloomberg
“Backing birthright citizenship doesn’t require some unprecedented feat of progressive jurisprudence. Just look at the Fuller Court, which decided Wong Kim Ark. Two years earlier, it issued Plessy v. Ferguson, one of the most notoriously racist rulings in U.S. history…
“Even those justices — who embraced the two-tiered ‘separate but equal’ regime of race relations that ruled the United States for generations — couldn’t find an honest way around the 14th Amendment’s plain language.”
Thomas Wolf, Brennan Center
The right is divided about the order.
The right is divided about the order.
“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.”
Gregg Jarrett, Fox News
“It makes no sense to me at all that the child of an illegal alien, the child of a family of German tourists visiting Disneyland, the child of an Argentine college kid here on a student visa, or the child of a Canadian woman who went into labor while doing her grocery shopping across the border should be automatically an American citizen…
“And, of course, there is a through-the-looking-glass quality regarding the child of an illegal alien being granted full citizenship and his due part in the making of our laws and the electing of our representatives when the very place and circumstance of his birth was one rooted in the breaking of those laws… As it stands, however, I think Trump’s executive order is very likely to get swatted away by the courts.”
Mark Antonio Wright, National Review
“As policy, [birthright citizenship] is debatable, with the case for excluding illegal immigrants being particularly strong. As law, however, it is almost certain to be stopped in the courts. The Supreme Court ruled on this subject at the end of the 19th century, and it has not weighed in since. Neither has Congress. If, as Trump claims, there is some leeway in the meaning of the 14th Amendment, it is not leeway that can be resolved by executive command.”
The Editors, National Review
Others argue, “The prospects for overturning Wong Kim Ark any time soon are remote. But even under the Wong Kim Ark precedent, controlling emphasis was placed on the importance of Ark’s parents being ‘permanently domiciled’ in the United States. Let’s update and apply that precedent to a world transformed by transportation technology in the ensuing 127 years… None of these issues is as settled or obvious as defenders of birthright citizenship insist.”
Ryan Williams, UnHerd
