Let’s review Trump’s unconstitutional order ending citizenship by birth. There’s over a dozen challenges already.
Protecting the Meaning and Value of Citizenship
Please consider Trump’s executive order on Protecting the Meaning and Value of Citizenship
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. 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.”
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.
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s 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 was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.
(c) Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.
Over a Dozen Lawsuits Already
The Wall Street Journal reports More Than a Dozen States Sue to Stop Trump’s Birthright Citizenship Executive Order
Attorneys general from more than a dozen states filed a lawsuit to stop the Trump administration from ending birthright citizenship. The lawsuit, filed in Massachusetts, said President Trump’s executive order violates the 14th Amendment which guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The attorneys general, in addition to the city of San Francisco, are asking for a preliminary injunction to stop the executive order from taking effect.
“President Trump’s attempt to undermine the fundamental right to birthright citizenship is not just unconstitutional, it is profoundly dangerous,” New York Attorney General Letitia James said Tuesday. She said the executive order would mean children who once qualified for birthright citizenship would now grow up under the threat of deportation. The attorneys general who joined their counterparts in Massachusetts and New York in the lawsuit are from California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont and Wisconsin.
Reflections on Executive Orders
The claim by Attorney General Letitia James that Trump’s order would strip citizenship is false due to this paragraph: “Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.“
Assuming Trump is going to seal the border, what then is the point to the order?
Also, if Trump can decide this by executive order, then why can’t another president can undo it by executive order?
Historical Background on Citizenship Clause
The Constitution Annotated discusses the Historical Background on Citizenship Clause
Fourteenth Amendment, Section 1:
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.
The citizenship provisions of the Fourteenth Amendment may be seen as a repudiation of one of the more politically divisive cases of the nineteenth century. Under common law, free persons born within a state or nation were citizens thereof. In the Dred Scott case, however, Chief Justice Roger Taney, writing for the Court, ruled that this rule did not apply to freed slaves. The Court held that United States citizenship was enjoyed by only two classes of people: (1) White persons born in the United States as descendants of
persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, [and who] became also citizens of this new political body,the United States of America, and (2) those who, having beenborn outside the dominions of the United States,had migrated thereto and been naturalized therein. Freed slaves fell into neither of these categories.The Court further held that, although a state could confer state citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Even a free man descended from a former slave residing as a free man in one of the states at the date of ratification of the Constitution was held ineligible for citizenship. Congress subsequently repudiated this concept of citizenship, first in section 1 of the Civil Rights Act of 1866 and then in Section 1 of the Fourteenth Amendment. In doing so, Congress set aside the Dred Scott holding, and restored the traditional precepts of citizenship by birth.
Civil Rights Act of 1866
The text of the Civil Rights Act of 1866 formed the basis of the fourteenth amendment.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That 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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
President Andrew Johnson vetoed the act but Congress overrode the veto.
Two Applicable Phrases
- The 14th Amendment says “subject to the jurisdiction thereof“.
- The Civil Rights Act of 1866 says “and not subject to any foreign power.”
A loss on one is sufficient to kill Trump’s executive order. Trump loses on both.
Subject to the Jurisdiction
The CATO Institute discusses that key phrase in its take Birthright Citizenship Is a Constitutional Mandate.
“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.”
For well over a century, all three branches of government have relied on a shared understanding of this provision. People born in the U.S. are citizens, regardless of the citizenship of their parents. An executive order by President Trump cannot erase the original meaning of the Constitution.
Start with the text. When the 14th Amendment was drafted, the phrase “subject to the jurisdiction thereof” had a settled meaning: It referred to a person who was subject to U.S. law. Foreigners who visit are required to follow American laws. They are, in every sense, subject to U.S. “jurisdiction,” or control. An exception is the children of diplomats, who are immune from American laws. Additionally, certain Native Americans born on sovereign tribal lands were also exempted, though the Indian Citizenship Act of 1924 made them citizens by birth.
The framers of the 14th Amendment debated the question presented by President Trump’s proposal. During the ratification debates, Sen. Edgar Cowan of Pennsylvania objected to the birthright-citizenship proposal: “Is the child of a Gypsy born in Pennsylvania a citizen?” he asked. “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?” Sen. John Conness of California answered that the children of Chinese and Gypsy aliens “shall be citizens” and he was “entirely ready to accept the provision proposed in this constitutional amendment.”
Judges have affirmed Conness’s view consistently. In 1898 the Supreme Court adopted it in U.S. v. Wong Kim Ark. The justices held that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens.”
It is true—as critics of birthright citizenship are quick to point out—that Wong Kim Ark considered only the status of a child born to lawfully resident parents. Therefore, they contend, the Supreme Court has not resolved the status of a child whose parents are not in the country legally. But this distinction makes no difference. If “subject to the jurisdiction thereof” refers to aliens who are subject to U.S. laws, it does not matter if the parents are in the country legally. The reason such people are called “illegal aliens” is that they are subject to U.S. law, and not in compliance with them.
Open and Shut Case
Regardless of whether one believe birth citizenship should be the law of the land, it is the law of the land, in two different forms, with the meaning of both historically clear.
Trump is wasting time and energy on a battle that will be lost.
If Trump wishes to divide the nation further, he can propose a constitutional amendment.
People cheer Trump (and Biden) for doing things they want. I prefer we stop fighting the constitution.
And I suggest that it would behoove Trump to stick to priorities that got him elected. Instead he is prancing with meme coins and issuing executive orders that will fail, possibly by unanimous decision.
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