President Trump’s announcement Tuesday that he is preparing an executive order to end birthright citizenship has the left and even some conservatives in an uproar. But the president is correct when he says that the 14th Amendment to the Constitution does not require universal birthright citizenship.
An executive order by President Trump ending birthright citizenship would face a certain court challenge that would wind up in the Supreme Court. But based on my research of this issue over several years, I believe the president’s view is consistent with the view of the framers of the amendment.
Those who claim the 14th Amendment mandates that anyone born in the U.S. is automatically an American citizen are misinterpreting the amendment in a manner inconsistent with the intent of the amendment’s framers.
Universal birthright citizenship attracts illegal immigration. By granting immediate citizenship to anyone born on U.S. soil, regardless of the legal status of the parents, we reward and encourage illegal and exploitative immigration.
Most countries around the world do not provides birthright citizenship. We do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation. That should be changed.
Many Republicans, Democrats and independents believe the 14th Amendment grants citizenship to anyone born on U.S. soil, even if their parents are here illegally. But that ignores the text and legislative history of amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.
Contrary to popular belief, the 14th Amendment doesn’t say that all people born in the U.S. are citizens. It says that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.
Critics of the president’s possible action erroneously claim that anyone present in the United States has “subjected” himself or herself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal immigrants alike.
But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
The fact that tourists or illegal immigrants are subject to our laws and our courts if they violate our laws means that they are subject to the territorial jurisdiction of the U.S. and can be prosecuted. But it does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “all persons born in the United States, and not subject to any foreign power” would be considered citizens.
The amendment was intended to give citizenship only to those who owed their allegiance to the United States and were subject to its complete jurisdiction. Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” meant not owing allegiance to any other country.
Universal birthright citizenship attracts illegal immigration. By granting immediate citizenship to anyone born on U.S. soil, regardless of the legal status of the parents, we reward and encourage illegal and exploitative immigration.
Today many people do not seem to understand the distinction between partial, territorial jurisdiction – which subjects all foreigners who enter the U.S. to the jurisdiction of our laws – and complete political jurisdiction, which requires allegiance to the U.S. government as well.
So while a foreign tourist could be prosecuted for violating a criminal statute, he could not be drafted if we had a military draft or otherwise be subject to other requirements imposed on citizens, such as serving on a jury. If a foreign tourist has a baby while in the U.S., her child is a citizen of her home country and owes no political allegiance to the U.S.
In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to all people born in America, no matter what the circumstances of their birth, and no matter the legal status of their parents.
Most legal arguments for universal birthright citizenship point to the Supreme Court’s 1898 decision in U.S. v. Wong Kim Ark. But that decision only stands for the very narrow proposition that children born of lawful, permanent residents are U.S. citizens.
The high court decision says nothing about the children of illegal immigrants or the children of tourists, students, and other foreigners only temporarily present in this country being automatically considered U.S. citizens. Those children are considered citizens of the native countries of their parents, just like children born abroad to American parents are considered U.S. citizens, no matter where the children are born.
The Supreme Court’s interpretation of the 14th Amendment as extending to the children of legal noncitizens was incorrect, according to the text and legislative history of the amendment. But even under that holding, citizenship was not extended to the children of illegal immigrants – only permanent, legal residents.
U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.” The federal government has erroneously interpreted that statute to provide passports and other benefits to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S.
As a result, the president of the United States has the authority to direct federal agencies to act in accordance with the original meaning of the 14th Amendment, and to issue passports and other government documents and benefits only to those individuals whose status as U.S. citizens meets this requirement.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation. He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”
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Donald Trump’s new position paper on immigration makes it official: He is easily the best presidential candidate on border security and immigration since Pat Buchanan. And we can be sure he is not a bait-and-switch politician who excites supporters with a few sensible ideas and then betrays them. Mr. Trump has single-handedly made immigration the key issue of this election. His heart is in it when he says we need to build a wall, deport illegals, and have an immigration “pause” until every American who wants a job gets one.
But can he win? The white percentage of the electorate drops every election. It was 74 percent in 2012 and likely to be 72 percent in 2016. Time is running out for white people, but a unique set of circumstances in 2016 may give them a real chance–perhaps their last chance–to elect a president who would actually help them rather than hurt them.
But if Mr. Trump wins, can he deliver? Every institution in America would join forces against a president with sensible policies, but a bold, thick-skinned chief executive supported by a carefully picked cabinet could rewrite the rules about how Americans think and talk about their country.
Mr. Trump’s positions on immigration are built on three principles: 1. A nation without borders is not a nation. 2. A nation without laws is not a nation. 3. A nation that does not serve its own citizens is not a nation. It’s startling to hear a politician even talk about what defines “a nation,” much less get it more or less right. The idea that immigration should benefit Americans rather than foreigners is revolutionary by today’s standards.
Many of Mr. Trump’s specific proposals could be implemented without much fuss. He would make the E-Verify system mandatory for all employers, which would make it impossible for illegals to work for anything but under-the-table cash. Anybody caught hiring illegals would be punished. He would end the Earned Income Tax Credit for illegals, and would stop granting visas to any country that refuses to take back citizens we want to deport. He would kick out every criminal alien who has served his sentence, unlike Mr. Obama, who seems to like keeping them here.
Mr. Trump would triple the number of ICE officials and end the policy of catch-and-release, under which ICE often tells local authorities who have caught an illegal to let him go. He would make H1-B visas harder to get, and would enforce a policy of hiring Americans first. He would set up a tracking system to catch and deport anyone who overstays his visa. He would deport any illegal alien who is a gang member, and would stop all federal payments to so-called sanctuary cities. All immigrants would have to prove they have the means to support themselves. Although this is not included in his policy paper, Mr. Trump has also said ininterviews that he would scrap all of Mr. Obama’s executive amnesties. All these things could probably be done just by enforcing laws on the books or by changing regulations.
Some of Mr. Trump’s other ideas would take more work: his call for an end to birth-right citizenship, for example. Arguably, he could simply order agencies to issue passports and social security numbers only to children born of citizens and permanent residents. Or he could get Congress to pass legislation to this effect. In either case, the tangled interpretations of the 14th Amendment would guarantee a legal challenge. Courts would probably find that the children of illegals are not citizens. Ideally, they would find that the 14th Amendment, which was passed to grant citizenship to former slaves, gives no child born of foreigners automatic citizenship.
Mr. Trump has also suggested in interviews that he wants to deport all illegals, not just criminals. This is by no means “impossible,” as critics claim. With E-Verify and employer sanctions, plenty of illegals would “self-deport,” just as Mitt Romney said they would.
The key, however, would be a few well publicized raids on non-criminal illegals. Television images of Mexican families dropped over the border with no more than they could carry would be very powerful. The vast majority of illegals would quickly decide to get their affairs in order and choose their own day of departure rather than wait for ICE to choose it for them. The main thing would be to convince illegals that ICE was serious about kicking them out. Ironically, the more ICE was prepared to do, the less it would have to do.
But those same images of Mexican families would raise a world-wide stink. They would send the libs and legals into a gibbering frenzy, so a Trump administration would have to have backbone. Deporting illegals–even tearful families with “deep roots in the community”–is entirely consistent with current law, so there could be no court challenge. It would be a simple matter of ignoring the gibbering, and getting on with the job. If churches harbored illegals, ICE teams would have to haul them out. Getting serious about deportation would set a marvelous example for the Europeans and would bring illegal immigration to a dead stop.
We might not even need the wall Mr. Trump plans to build, though it’s certainly a good thing to have. The trick would be getting the Mexicans to pay for it, as Mr. Trump promises they will. The position paper says a Trump administration would divert remittances to Mexico from illegal immigrants, but it would be hard to verify which payments were from illegals, and plenty of them would love an excuse to stop sending money home anyway. The paper also says we could increase fees on visas issued to CEOs and diplomats, charge more for border-crossing cards, levy an entry fee at the Mexican border, and impose tariffs on Mexican goods. Making every Mexican who crossed the border pay a stiff fee until the wall was built sounds like a fine idea, but the others probably would not raise much money or would violate treaties.
One way Mr. Trump says he would make Mexico pay for the wall is to cut off foreign aid. Depending on how it’s calculated, handouts to Mexico runs to as much as $900 million a year. It’s hard to understand why Mexicans deserve even a dime of our taxes. Turning off the tap would be instant savings, whether to pay for a wall or not.
Finally, Mr. Trump’s “pause” in issuing green cards would be a wonderful thing, but it would probably require legislation. The Immigration Act of 1990 raised the annual number of visas passed out each year from 290,000 to 675,000 (not including refugee or H1-B visas and all kinds of other dubious waivers and exemptions) and set up the diversity-visa lottery that lets in another 55,000 a year. Every year there are about one million people who become lawful permanent residents (LPRs) or “green card holders.”
Of course, Mr. Trump could take a leaf out of Mr. Obama’s book and legislate by executive order. If President Obama can simply decide not to enforce the law against minors who were smuggled into the country–and then decide also to exempt the parents who smuggled them–President Trump could probably shut down the lottery and cut way back on family reunification.
There is no end to the good a president could do if he were really convinced that immigration should benefit us rather than foreigners. Today the executive branch is thick with people who make no secret of wanting “diversity” of every kind, and think immigration is the best way to get it. Imagine an executive run by people who were as sick of immigration–legal and illegal–as real Americans are. Imagine regular executive briefings on crimes committed by foreigners, on monthly deportation figures, on new miles of border wall completed, on frauds and criminals turned back at the border. Imagine an executive branch that cuts off funding to La Raza and MALDEF and all the “refugee” resettlement groups. Imagine a government that laughs at editorials in the New York Times, and that actually cares about the welfare of Americans.
A change in tone would be as dramatic as a change in policy because a president and his cabinet have tremendous influence that goes well beyond policy. They can put a subject on the national agenda just by talking about it. They can make it respectable just by continuing to talk about it. Actually looking at the pros and cons of immigrants could open the door to looking at the pros and cons of different groups of people. White, high-IQ, English-speaking people obviously assimilate best, and someone in a Trump administration might actually say so. A Trump presidency could completely change what is said about the difference between a crowd and a nation, and what it means to be an American.
So far, Mr. Trump has said little about race, but President Trump would certainly be no pushover for blacks. Al Sharpton–whom Mr. Trump has called a “professional conman”–would never darken the White House door again, and the Black Lives Matter frauds would get the cold shoulder.
And a Donald Trump presidency is no longer pure fantasy. He continues to widen his lead over Republican competitors. He is the first choice of 24 percent of registered Republicans—11 points ahead of his closest rival, Jeb Bush. He also comes in first as a second choice: 14 percent to Jeb Bush’s 10 percent. Sixty-nine percent of Republicans have a favorable view of Mr. Trump, which is eight points more than the 61 percent who view Mr. Bush favorably. A majority of Republicans who are likely to vote–57 percent–now think Mr. Trump will be the Republican candidate.
Just as important, according to a CNN/ORC poll of potential voters, Mr. Trump has pulled to within 6 percentage points (51 to 45) in a theoretical contest with Hillary Clinton. Just last month he was 16 points behind. Mr. Trump would get 55 percent of the white vote and 53 percent of the male vote; only women and non-whites continue to be strong Hillary backers.
The coming election is a combination of circumstances that will never repeat itself. Mr. Trump is a brand new face in politics, at a time when public trust in the federal government is close to a record low. His Republican opponents are nonentities. The most likely Democratic candidate is a shopworn harridan even her supporters don’t entirely trust.
Mr. Trump is also prepared to spend up to $1 billion of his own money to win the election. He says he turned down $5 million from a lobbyist, because he doesn’t want to owe favors to anyone. As the campaign continues, more and more voters will be impressed by his complete independence from special interests. Finally, when the time comes for street-level canvassing and get-out-the-vote drives, Mr. Trump will have armies of committed volunteers instead of the party hacks who are pushing his rivals.
There will never be another campaign like this one. If Mr. Trump loses, this could be the last chance whites have to vote for a president who could actually do something useful for them and for their country.
