Trump has precedent, common sense on his side in birthright citizenship fight

November 1, 2018

By Brian Lonergan

In his continuing effort to shake up the status quo in Washington, President Trump dropped a bombshell recently. The announcement that he would sign an executive order restricting birthright citizenship sent the anti-borders movement into a state of apoplexy. “He can’t overturn the Constitution! The issue has been settled!” they said through gnashed teeth. Closer inspection reveals that Trump can indeed correctly interpret a law that has been misinterpreted for more than a century.

To be clear, there is no text in the Constitution, a Supreme Court decision, or an act of Congress that specifically conveys birthright citizenship to the children of illegal aliens. The legitimacy of the practice clings to a subjective interpretation of the citizenship clause of the 14th amendment to the Constitution, which declares that “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.” This, proponents claim, is the unassailable proof that the clause endows citizenship to children born in the United States to illegal aliens. Opponents have said that the “subject to the jurisdiction thereof” portion was meant to exclude aliens. If only the framers of the amendment were more specific in their language to settle the matter.

As it turns out, the framers were quite clear. Sen. Jacob Howard, author of the citizenship clause of the 14th amendment, said on the floor of the Senate in 1866 that the clause “will not, of course, include persons in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” In other words, quod erat demonstrandum.

There is also legal precedent supporting Sen. Howard’s clarification. In July of this year, attorneys from the Immigration Reform Law Institute (IRLI) filed a brief in the case of Fitisemanu v. United States, a case on birthright citizenship before the U.S. District Court for the District of Utah. In its brief, IRLI analyzed a controlling Supreme Court case, United States v. Wong Kim Ark, which was decided in 1898.

The Supreme Court held that, because the Wong Kim Ark’s parents were legally residing in the United States when he was born here, he was a citizen at birth under the Fourteenth Amendment. The holding in this case is widely misread as conferring citizenship at birth under the Fourteenth Amendment on all persons whatsoever born in the United States (with the narrow exceptions of children of diplomats, members of an invading force, or Indians born in the allegiance of a tribe). IRLI showed in its brief that this reading is wrong; the Court clearly excluded the children of illegal aliens and non-U.S. residents from constitutional birthright citizenship.

While announcing his executive order, Trump said that the U.S. is the only country that permits birthright citizenship. The media pounced, quickly pointing out that over 30 other countries also allow it. But they buried the lead in reporting that fact. The U.S. and Canada are the only developed countries in the world that still allow birthright citizenship. While Canadian Prime Minister Justin Trudeau has embraced the perception of his country as more progressive on immigration than its neighbor to the south, there is a movement in Canada to abolish the practice. The Conservative Party of Canada in August approved a resolution to fully eliminate birthright citizenship.

There are currently no European Union countries that have birthright citizenship, or jus soli (“right to the soil”). A number of countries tried it and discarded the practice. France rescinded birthright citizenship in 1993, opting for a new law that restricted citizenship to those born to a French parent or to a parent also born in France. Ireland ditched jus soli in 2004, with almost 80 percent of its citizens voting against the idea. England, India, Australia, and New Zealand also discontinued birthright citizenship. The countries that still have birthright citizenship are predominantly smaller nations in Latin America, the South Pacific or the Caribbean where immigration levels are microscopic compared to those of the United States.

Why have so many purportedly more enlightened nations abandoned jus soli? Perhaps because they saw the detrimental effects of unfettered migration into their country, including the overwhelming of their social services, lowering of wages and loss of cultural identity. Maybe they don’t want collateral phenomena like the “birth tourism” industry. Whatever the motivation, it is not unprecedented or unreasonable for an American president to act similarly.

Birthright citizenship has been in practice for decades in the U.S., due more to a perhaps willful misreading of the Constitution and legal precedent than to legitimacy in the law. President Trump is not calling for a guerilla assault on the Constitution, but a proper interpretation of it.

Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at: Brian Lonergan, Trump has precedent, common sense on his side in birthright citizenship fight, The Hill, November 1, 2018.