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How President Trump Could End Birthright Citizenship For Illegals

             11/1/2018

President Trump

                                                                                                                                                                                                                                                 

President Trump announced during an interview with Axios on HBO that he is planning to end birthright citizenship from America’s laws via executive order.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said. He discussed the plan with Axios on HBO that is slated to air Sunday . "You can definitely do it with an act of Congress," Trump said in the Axios on HBO interview. "But now they're saying I can do it just with an executive order. "He added, "We're the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits. It's ridiculous. It's ridiculous, and it has to end." This, however, is inaccurate as at least 30 countries grant automatic birthright citizenship.

"Well, you obviously cannot do that," Senate Majority Leader Paul Ryan told radio station WVLK in Kentucky. "You cannot end birthright citizenship with an executive order." Ryan said, "we didn't like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution .... I'm a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process."

The legal issue which will almost certainly play out in the courts and might well reach the Supreme Court, is whether children born in the United States, even if their parents are foreign nationals who entered this country illegally, automatically become citizens. Many people erroneously believe that the 14th Amendment grants the same; however, this is far from clear. Section 1 of the 14th Amendment states 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.”

Mark Krikorian, the executive director of the Center for Immigration Studies, predicted, "This will set up the court fight." CIS identifies itself as a nonpartisan think tank, but it has consistently called for tougher U.S. immigration policies, and the Southern Poverty Law Center has designated it a hate group, as it often does to an exorbitantly high number of organizations. If Trump moves ahead with his plan, Krikorian said via Twitter, "the order will be enjoined, case will eventually reach SCOTUS, which then will finally have to rule on the meaning of 'subject to the jurisdiction.' "

Critics of birthright citizenship have argued this encourages pregnant women who want to immigrate to travel to the U.S. to have their babies, hoping to gain citizenship for their children and, they say, potentially easing their own path to becoming U.S. citizens. But immigration advocates say those concerns are overblown — part of a campaign to stir up voters in an election season. Jess Morales Rocketto, whose “Families Belong Together” group has fought the Trump administration's family separation policy stated: "This is ethnic cleansing," "This is an attempt to white-out America's history and heritage as a nation of immigrants. And it's unconstitutional." While it's difficult to track the exact number of children whose parents are in the U.S. illegally, the Pew Research Center has reported that in 2014, 3.2 million children — nearly 6 percent of all K-12 students in the U.S. — had at least one unauthorized immigrant parent and were citizens because they were born in the U.S.

The purpose of the 14th amendment was to correct the dreadful (pun intended) decision in Dred Scott vs. Sanford (1857) and recognize citizenship for the newly freed slaves. This amendment did not however even extend to members of Indian tribes living on reservations. The language of the Citizenship Clause derived from the Civil Rights Act of 1866, enacted by the same legislators (the 39th Congress) who created the 14th Amendment. The Civil Rights Act of 1866 conferred citizenship on “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” Foreign nationals resident in the United States and children who become citizens of a foreign country at birth by virtue of their parents’ citizenship would obviously be excluded from this definition.

The sponsor of the Citizenship Clause, Senator Jacob Howard (R-MI), stated that its language “is simply declaratory of what I regard as the law of the land already,” explaining that “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.”

This issue has caused many on both sides of the aisle to take contrary positions, but all seem to agree that the current practice can and should be corrected by legislation, pursuant to Congressional power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Congress has tried to introduce legislation on this issues in the past, such as S.1351 (1993), H.R.1567 (2003), H.R.140 (2015)—and supported by Republicans and Democrats. That includes former Senate Majority Leader Harry Reid (D-NV), who stated in 1993 that “no sane country” would grant citizenship to the children of illegal immigrants solely because they were born on American soil.

While many seem to agree that Executive Order is not the proper way of handling this very significant issue, it appears as if Donald Trump, once again, willfully or not, has brought a very important issue to the surface and one that has been long overdue in our country. We need to straighten our immigration laws and must find ways to deal with birthright citizenship, “birth tourism”, chain migration, etc. This might be the event that starts the chain of events to have the Supreme Court decide the issue once and for all.

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