By: Elizabeth Fitch, Staff Writer
President Trump has claimed that he is planning an executive order that would ultimately invalidate the safeguarded constitutional promise of birthright citizenship in the United States. This order would understandably create major competing concerns with the Constitution. The words of the 14thAmendment are rarely questioned; the statement is uniformly understood to mean the following: Children who are born in the United States automatically become citizens of the United States.[1] The question then remains, can the President really defy the Constitution with the stroke of a pen?
As of now, this talk of an executive order has not yet left the White House. There has been much backlash at the thought of President Trump’s proposal; many saying that there is no way he can nullify birthright citizenship by executive order.[2] They look directly at the language of the Constitution.[3]
Section one of the Fourteenth Amendment reads as follows:
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[4]
The issue presented comes down to the words, “and subject to the jurisdiction thereof…” This language creates a divide between those who are in America legally to give birth and those who are unauthorized to be in the country at that time.
It is not uncommon for foreigners to legally enter the United States in order to give birth and ultimately provide an American passport, American doctors, and an American education for their children.[5] There are no laws governing whether or not pregnant foreign nationals can enter the country or give birth in the states. This method of obtaining birthright citizenship only raises a legal issue if women lie on immigration or insurance paperwork; if they use fraud or deception to obtain a visa or gain admission into the country, it then constitutes a crime.[6] One Russian mother who came to the States to give birth to her children explains that this isn’t just some vacation; she expects to pay close to $50,000 with visas, doctors, and apartment expenses included. She understands the concerns that some have about birth tourism, explaining that this is also an issue in Russia, but clarifies that,“I pay by myself, I pay with my money, bring it here to America… I don’t know what my daughter will choose in future. But if I can spend money — my money — for her choice, why not?”[7]
Those opposing argue that unauthorized immigrants are not “subject to the jurisdiction” of the United States.To be subject to the jurisdiction of the United States is to be subject to the authority of the United States government. The phrase therefore covers the multitude of persons within the country’s borders who are required to obey U.S. laws.[8] “Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,” writes U.S. circuit judge of the U.S. Court of Appeals for the 5th Circuit.[9] Former spokesman for President Trump’s National Security Council Michael Anton opposes, “The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.”[10]
Whether President Trump’s proposal is a serious one or not, Stephen Legomsky, a Washington University School of Law professor and former chief counsel for U.S. Citizenship and Immigration Services, says that the 14th Amendment’s application to the children of undocumented immigrants should come down to a matter of common sense.[11] “Like anyone else, native-born Americans, whoever their parents are, can be charged with crimes if they disobey U.S. law,” Mr. Legomsky said. “How would this be possible if the U.S. had no jurisdiction over them?”[12]
Sources:
[1]https://www.nytimes.com/2018/10/30/us/politics/birthright-citizenship-executive-order-trump.html?module=inline
[2]https://www.nbcnews.com/politics/immigration/trump-wants-end-birthright-citizenship-executive-order-n926081
[3]Id.
[4]https://www.law.cornell.edu/constitution/amendmentxiv
[5]https://www.nbcnews.com/news/us-news/birth-tourism-brings-russian-baby-boom-miami-n836121
[6]Id.
[7]Id.
[8]https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf
[9]https://www.washingtonpost.com/politics/2018/10/30/trump-wants-end-birthright-citizenship-judge-he-appointed-says-he-cant/?utm_term=.f4e32731193d
[10]https://www.nytimes.com/2018/10/30/us/politics/trump-birthright-citizenship.html
[11]Id.
[12]Id.
