Or does he? One of President Trump’s initial round of executive orders is titled Protecting the Meaning and Value of American Citizenship. Like his other orders, this one begins with a statement of purpose, which reads in part:
The Fourteenth Amendment states: “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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.
But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
That much is clear. But who, exactly, is born in the U.S. but not “subject to the jurisdiction thereof”? The order proposes an answer:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
The order goes on to direct federal authorities not to issue citizenship documents or accept documents issued by other levels of government that are inconsistent with that definition.
Birthright citizenship, as that term is now commonly used, has been a misfortune if not a disaster. Citizens of other countries are generally aware that if they come to the U.S., legally or illegally, and have a baby here, that baby is considered a citizen of the U.S. That has been a powerful attraction for illegal immigrants, especially when our government has expressed horror at the idea of “family separation.” Large numbers of anchor babies have been born here as a result.
I think that Trump’s executive order is clearly right as a matter of policy. An illegal alien should not be able to make her way across the border–no great feat, under Joe Biden’s open borders policy–and make her baby an American citizen, with all that entails not just for the baby, but for the rest of the family.
But the legal question is harder. Is Trump’s order consistent with the 14th Amendment? Since the illegal alien’s baby is clearly born here, it turns on the qualifying language, “and subject to the jurisdiction thereof.” Some argue that the qualifying language is irrelevant, since everyone, illegal aliens included, is subject to the jurisdiction of the U.S. government.
But it is a fundamental principle of statutory and constitutional construction that every clause must be given meaning, if at all possible. “Subject to the jurisdiction thereof” must mean something, must qualify the otherwise-universal citizenship accorded to babies born here. But how?
Contrary to what you may read in low-information news sources, the U.S. Supreme Court has never held that the child of an illegal alien is a citizen if born within our borders. The child of a legal resident, yes. So the question remains unresolved. As a policy matter, children of illegal aliens should not be citizens. But how, exactly, can “subject to the jurisdiction thereof” be applied, when it would seem that everyone is subject to our laws?
Twenty-two blue states have already sued to try to block implementation of this executive order. They have an interest in continuing to attract illegal aliens, and particularly pregnant illegal aliens, who contribute to their representation in Congress and also create enormous demand for welfare and other government services–a plus if you are a Democrat.
Ultimately, the Supreme Court will have to decide what that elusive clause, to which significance must be attributed if at all possible, means. Personally, I hope they decide it means that illegal aliens can’t, by breaking our laws, create new American citizens.
Notice: All comments are subject to moderation. Our comments are intended to be a forum for civil discourse bearing on the subject under discussion. Commenters who stray beyond the bounds of civility or employ what we deem gratuitous vulgarity in a comment — including, but not limited to, “s***,” “f***,” “a*******,” or one of their many variants — will be banned without further notice in the sole discretion of the site moderator.