The birthright citizenship debate explained

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President Trump’s statement that he is considering an executive order ending current precedent regarding birthright citizenship caused a media frenzy this week. But what did the president actually say? And what are the possible outcomes if such an order were issued?

Let’s start with the president’s statement in an interview with “Axios on HBO.” Axios had been tipped off that the Trump administration was working on an executive order related to the citizenship status of children born to non-citizens on American soil.

{mosads}”It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said. When told by an interviewer that could be disputed, Trump said, “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.” The president then confirmed his staff was working on an order.

The public reaction was extensive, from arguments that such an order would be unconstitutional, to claims that an executive order or a congressional act could change birthright citizenship rules.

The first sentence of the 14th Amendment is at the center of the dispute. It reads, “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.”

Chapman University law professor John Eastman argued in the New York Post that birthright citizenship for undocumented aliens isn’t a right directly established by the 14th Amendment because of how the phrase “subject to the jurisdiction thereof” was understood in 1866. “The actual language of the 14th Amendment actually contains two requirements for automatic citizenship, not just one,” Eastman says one requirement is that someone is on United States territory when they are born; the other requirement is that someone is subject to the “complete jurisdiction” of the United States, Eastman says.

Eastman previously argued. “subject to the jurisdiction” actually “meant not ‘owing allegiance to anybody else’” or being “subject to a foreign power.”

Cornell law professor Michael C. Dorf says that the 14th Amendment’s plain language indicates anyone born on United States soil, with very few exceptions, automatically becomes a citizen at birth.

Commenting on Trump’s statement, Dorf says, “the difficulty with this position is that, historically, the ‘subject to the jurisdiction thereof’ language has been understood to be a narrow exception for children born to invading armies, to foreign diplomats, or on foreign ship — as the Supreme Court held in the Wong Kim Ark case in 1898.” Dorf believes “persons born in the U.S. to undocumented immigrant parents are U.S. citizens, full stop. Neither an act of Congress nor an executive order can change that. Only a constitutional amendment can.”

One point of contention here is what the Wong Kim Ark decision didn’t consider: if the children of undocumented aliens automatically become United States citizens if they are born on American soil. Wong Kim Ark’s parents were legally in the country and the concept of undocumented aliens wasn’t considered in 1898.

Dorf writes that, “although Wong Kim Ark did not involve undocumented immigrant parents, its logic very much extends to them. Children born to undocumented immigrants (and for that matter, the parents themselves) are certainly subject to U.S. jurisdiction.” Eastman said in 2015 that “the [Wong Kim Ark] court did not specifically consider whether those born to parents who were in the United States unlawfully were automatically citizens.”

I am going to stop there, since I’m a journalist and not a constitutional scholar, and my kind editors at The Hill have me on a word-length limit. But that’s the gist of the main argument as I understand it. Does the language and intent of the 14th Amendment’s Citizenship Clause, as well as the Supreme Court’s Wong Kim Ark decision, establish a right to birthright citizenship for the children of undocumented aliens?

I also encourage you to adopt our mantra at the National Constitution Center and research all sides of an issue. If you have the time, you’ll want to consider if the President, Congress, or the Supreme Court would ultimately decide this question. Or is a constitutional amendment needed to settle it? Our Interactive Constitution project’s 14th Amendment section is a good place to start.

One thing as a journalist I do sense is that the birthright citizenship debate isn’t going away. Senator Lindsey Graham plans to introduce legislation that mirrors any Trump executive order. Understanding the 14th Amendment and the general concepts of its Citizenship Clause is worth the effort if you want to follow the debate.

Scott Bomboy is the editor in chief of the National Constitution Center. 

Tags birthright citizenship Constitution Donald Trump Donald Trump Immigration Lindsey Graham Scott Bomboy

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