On Monday, his first day back in office, President Donald Trump issued a Wave of executive orders.
Some are ridiculous, such as a command aimed at Gulf of Mexico renamed “Gulf of America”. Others are ominous, such as an order that would greatly increase the number of federal civil servants who can be fired at will. Many of the orders seek to implement tough immigration policies that are at the heart of Trump’s political message.
The most alarming of these immigration orders is the stripping of citizenship from millions of future Americans.
There is not even a reasonable argument that this order is constitutional. The Constitution is absolutely clear that all people born in the United States and subject to its laws are citizens, regardless of the immigration status of their parents. Supreme Court This principle was recognized more than 125 years ago.
Nevertheless, Trump’s order, labeled “Protecting the meaning and value of American citizenship,” intended to deny Americans dual citizenship. The first is children born to undocumented mothers whose fathers were not themselves citizens or legal permanent residents at birth. The second is children whose fathers have the same immigration status, and whose mothers were legally but temporarily present in the United States at the time of birth.
Immediately after the executive order was released, pro-immigration advocates began naming prominent Americans who could not become citizens if the order took effect — including Former Vice President Kamala Harris. That said, the order doesn’t apply to current U.S. citizens, and it’s not retroactive: it only “seeks to disenfranchise persons born within the United States.” 30 days from the date of this orderof citizenship.
It is likely that immigration advocates will soon get a court order blocking Trump’s executive order — a group of civil rights groups, including the ACLU. A case has already been filed I want such an order. And, because the Supreme Court has already ruled that birthright citizenship is the law of the land, any lower court judge hearing the case would be bound by the court’s 125-year-old decision.
But the current Supreme Court also has a 6-3 Republican supermajority, which recently and surprisingly ruled that the president is allowed to use the power of his office to commit crimes. So there’s always some risk that this court will ignore the law and rule settled in Trump’s favor.
The Constitution is absolutely, positively, crystal clear that Trump’s executive order is invalid
There are difficult questions in US constitutional law. The question of whether the federal government can deny citizenship to almost anyone born in the United States is not one of them.
D 14th Amendment Provides that “all persons born or naturalized in the United States, and subject to their jurisdiction, are citizens of the United States and of the states in which they reside.”
“all persons” means all Individuals with two noncitizen parents, or even two parents who are undocumented immigrants.
Of course, this amendment contains an exception to this broad rule. Only children born “under the jurisdiction” of the United States are entitled to birthright citizenship.
The term “jurisdiction” refers to the ability of an entity to exercise legal authority over that person. For example, a court has “jurisdiction” over a particular litigant if it has the power to issue a binding judgment against that person. Or, as Judge James Ho, an ultra-conservative Trump appointee to a federal appeals court, wrote 2011 op-ed“A foreign national residing in the United States is ‘subject to its jurisdiction’ because he is legally required to obey US law.”
Basically, if someone is present in the US at birth, they are – with only a few exceptions that I’ll explain below – subject to the country’s laws. They are therefore subject to US jurisdiction and, by the text of the 14th Amendment, have the right to birthright citizenship.
Trump’s executive order states that many children of immigrants are not under US jurisdiction. But this creates a problem for the government. If Trump’s claim is correct, it does not mean that these children are not entitled to birthright citizenship. This means they will be free to ignore US law and it will be illegal for the government to arrest, detain or deport them.
Regardless, the Supreme Court rejected Trump’s position United States v. Wong Kim Arch (1898), which held that a person born in San Francisco to parents of Chinese descent was a citizen. Wong Kim Arch Listed three classes of persons who would not automatically become citizens if born in the United States: “children of diplomatic representatives of foreign nations,” “born of foreign enemies in hostile occupation” and certain “children of members. of Indian tribes.”
The third of these three exceptions is no longer relevant: The Indian Citizenship Act of 1924 Granted citizenship to “all noncitizen Indians born within the territorial limits of the United States”. But the remaining two categories — children of diplomats and members of foreign occupation forces — both involve individuals who are not subject to U.S. jurisdiction. Foreign diplomats generally enjoy diplomatic immunity from the laws of the country they are in, and enemy occupiers are not subject to US law because the whole point of such an occupation is to displace the US government.
Other noncitizens, by contrast, are bound by US law while they are present in the US. So the 14th Amendment provides that their children are US citizens.
Trump’s executive order doesn’t even attempt to justify itself legally
It is noteworthy that Trump’s birthright citizenship mandate Makes no legal argument justifying the President’s decision to overrule the almost universally accepted interpretation of the Constitution adopted by the Supreme Court almost a century ago. Instead, it simply declares that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States” (which is true, because children of diplomats exist), then lists the categories of US citizens that Trump wants. aim
That said, some of Trump’s allies previewed the kinds of legal arguments his administration might make to justify the order.
A 2020 op-ed Questioning Harris’s qualifications for the vice presidency, for example, Trump’s lawyer John Eastman (who Currently facing disbarment proceedings in California) made an argument Similar to Chief Justice Melville Fuller’s dissent Wong Kim Arch.
According to Eastman, the 14th Amendment’s reference to people “subject to the jurisdiction” of the United States actually means “subject to full jurisdiction, not just a partial jurisdiction such as that which applies to someone temporarily residing in the United States.” Eastman’s op-ed is short, so he doesn’t fully explain his argument; It is not clear why he thinks, for example, that temporary visitors to the United States are only partially subject to US law.
But the most obvious problem with Eastman’s argument is that the Constitution does not say “subject to absolute jurisdiction” it only says “subject to jurisdiction”.
Similarly, a 2018 op-edFormer Trump administration official Michael Anton has claimed that the 14th Amendment does not apply to people who owe “loyalty” to another country. Although much of Anton’s argument is difficult to parse, he believes that people born with sufficient ties to another country cannot have children born to US citizens.
This argument, however, is rejected by Wong Kim Arch. At the heart of this case was a born U.S. citizen.”A person of Chinese descent and a subject of the Emperor of China” meaning that his parents owed allegiance to China. However, the Supreme Court held that the man was still entitled to citizenship by birth.
