Donald Trump, Immigration Wimp

Donald Trump is a wimp on immigration.  Say what?!?!

Yup, he is. If he really wanted to disrupt the immigration debate in the country, he’d go way beyond calling for a fence, and raise the issue of “birthright citizenship.” It is a widespread practice these days—growing especially popular with rich Chinese—for expectant mothers to come to the U.S. and give birth here so that their children will be U.S. citizens, and then become “anchor babies” that set up families to immigrate legally to the U.S. (though this second part is not simple or easy).

It is just assumed that the 14th Amendment’s provision that “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” means all you need to do is be born on U.S. soil, even if you only snuck over the border 30 seconds before. But there’s a very strong constitutional argument to be made that just because you are born on U.S. soil does not automatically entitle you to U.S. citizenship.

Bore in for a moment on the clause of the 14th Amendment about “subject to the jurisdiction thereof.” My old roommate John Eastman presented the case to the House Judiciary Committee a few months ago; you can read his testimony here.  A relevant excerpt:

However strong this interpretation [of birthright citizenship] is as a matter of contemporary common parlance, is simply does not comport with either the text or the history surrounding adoption of the Citizenship Clause, nor with the political theory underlying the Clause. Textually, such an interpretation would render the entire “subject to the jurisdiction” clause redundant—anyone who is “born” in the United States is, under this interpretation, necessarily “subject to the jurisdiction” of the United States—and it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.

Gosh, that’s language that even Chief Justice Roberts could figure out.  Anyway,

Historically, the language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the Fourteenth Amendment) was derived so as to provide a more certain constitutional foundation for the 1866 Act, strongly suggests that Congress did not intend to provide for such a broad and absolute birthright citizenship. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided in the 1866 Act.

Eastman explains the subject at greater length in this 10-minute interview from 2008:

Over to you Trumpster!

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