Thursday, November 1, 2018

Birthright Citizenship

Recently, President Trump made the statement that he was going to change birthright citizenship by executive order, and more recently said it would be more appropriate for Congress to make the change.  I've read lots of pro and con editorials saying why he should or cannot do this.  Perhaps the best was a New York Post opinion piece by John Eastman entitled "Revoking Birthright Citizenship Would Enforce the Constitution."  I highly recommend reading the whole article.

President Trump's intent was to stop granting citizenship to the children borne to visitors to our country and to illegal immigrants.  Apparently there is also a big industry called 'Birth Tourism' where people pay to come here and give birth, granting their children citizenship with all the rights and benefits that entails.

Most of the critical writers claim that this is a constitutional right and you cannot change that by executive order.  If it were a constitutional right, they would be correct.  However, I, and a significant number of legal minds, believe the constitution is currently being interpreted incorrectly.  Theoretically, that would allow President Trump to change enforcement to a correct/different interpretation.  However, since every executive order appears to be struck down by some liberal federal district judge, I would expect the same thing to happen in this case.  Hence, execution of any executive order would likely have to wait for Supreme Court review.

The 1868 14th Amendment to the Constitution 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.”   Apparently, there is a 1952 immigration and naturalization law that uses the exact same words.  But also covers other aspects of immigration and naturalization.

John Eastman argues that the 14th Amendment authors stated their intention was to assure citizenship to former slaves and their descendants, but not to grant citizenship to visitors who had allegiances to other nations.  That would eliminate the birth tourism, and granting of citizenship to children of visitors and illegal immigrants.  He shows that the understanding of "jurisdiction" has changed in the intervening years, so most people now think it means anyone subject to US laws.

Apparently, most nations do not grant citizenship to everyone, just because they were in their country at the time of their birth.

I don't want to rehash all of those arguments.  What I do want to point out is that if the authors of the constitutional amendment wanted anyone birthed on US soil to have citizenship, they could simply have left out "and subject to the jurisdiction thereof."  For some reason, I have not seen this point anywhere else.  One could argue authors were worried about a few hundred people with diplomatic immunity, but comparing that to tens of thousands (and today a lot more) visitors and illegal immigrants, I don't think that is a valid concern.

Thus, it is obvious to me the intention of the Amendment was NOT to grant citizenship by birth to children of visitors from other countries or illegal immigrants.  Accordingly, President Trump would be within his rights and powers to enforce the laws of the US and the Constitution to change enforcement and execution of the Amendment.

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