Here’s several reasons why Trump cannot take away birthright citizenship

Should a candidate for President that meets the “natural born” standard be declared unqualified because his parents were illegal?

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Image Credit: Gage Skidmore/Flickr

Recently, President Trump announced that he was going to take away birthright citizenship – by executive order, no less.  “In some cases, parents will have to apply for a visa to legally bring their child to the U.S. and establish residency before applying for citizenship. 

Those groups include: 

  • parents who adopted children while serving abroad
  • parents who became U.S. citizens after their children were born
  • parents who are U.S. citizens but have never lived here
  • recently naturalized citizens who have not met the U.S. residency requirements to transmit citizenship to their children automatically.” 

Let’s start with the Constitution, which says in the 14th Amendment, 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 rule does not appear to apply to children born outside the United States.  “Since 1790, persons born outside the United States of US citizen parents have been declared American citizens, because Congress has created that result by statute. In fact, the 1790 statute specifically stated that persons born outside the US of citizen parents are “natural born.” But later statutes did not include the “natural born” provision, and it might be noted that before 1790 persons born outside the US of citizen parents were not citizens. It was only by virtue of the statute that this occurred.”  

Another pertinent part of the Constitution is Clause IV of Article I, which grants Congress power “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”

Since the Constitution itself does not grant citizenship by birth outside the United States, the only way that citizenship can be derived is by Congressional legislation, and Congress in 1790 spoke clearly.  So if a child is born to two American citizens outside the United States, that child is a citizen, and the President lacks the power to take it away by an executive order.

 “Under our system of government, the president’s authority to issue such orders (or to engage in any other form of unilateral executive action) must come from the Constitution or federal law. Put another way, an executive order can be used to execute a power the commander in chief already has. It can’t be used to give the presidency new powers.” 

The foregoing would seem to hold that granting citizenship to persons born outside the United States is accomplished under the Naturalization Clause.  That Clause is exclusively within the power of Congress, not the President.  Of course, Trump could try to argue that the granting or denial of citizenship to military children is within the War Powers, which is a presidential power.  But this would appear to be a stretch.

Some of the rules of Congress do not even grant citizenship.  For example, The Child Citizenship Act of 2000 was designed to make acquisition of U.S. citizenship easier and to eliminate extra steps and costs. Under the Child Citizenship Act, children adopted abroad automatically acquire U.S. citizenship if:

At least one of the child’s parents is a U.S. citizen;
The child is under 18;

  • The child lives in the legal and physical custody of the American citizen parent;
  • The child is admitted into the United States as an immigrant for lawful permanent residence; and
  • The adoption is final.

Therefore, parents who adopt children while serving abroad can have the children automatically be granted citizenship if it falls within the Child Citizenship Act, and the President should not be able to deny citizenship to such children.  

Similarly, “recently naturalized citizens who have not met the U.S. residency requirements to transmit citizenship to their children automatically” would not transfer citizenship to their children even under this statute, and the executive order doesn’t really matter.  

On the other hand,  a child can automatically become a citizen even if the parent becomes a citizen after its birth.

Example One

The Kumar family, consisting of parents and two young children, reside in the United States as permanent residents. In May 2017, the mother was sworn in for U.S. citizenship. The two young children were immediately U.S. citizens upon their mother’s naturalization.

Example Two

Mr. and Mrs. Smith were born in the United States and, thus, are U.S. citizens. They adopted a baby girl from abroad. The child was admitted into the United States in May 2017, as a lawful permanent resident. This child automatically became a U.S. citizen upon admission, as she then met the requirements outlined above.

Here, Trump is tramping on the Congressional statute.

What if the parents are citizens but have never lived in the U.S.?  This can happen if each of the parents were born of U.S. parents but always lived abroad.  “A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock for the purposes of citizenship acquisition when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child under local law at the time and place of birth.” 

Thus, if the parents are citizens but never lived in the U.S., their child doesn’t automatically become a citizen.  To that extent, Trump’s rules are consistent with the Congressional statute.

But Trump is looking to go much further with his attack on birthright citizenship.  “U.S. President Donald Trump said on Wednesday that his administration was seriously looking at ending the right of citizenship for U.S.-born children of noncitizens and people who immigrated to the United States illegally. 

“We’re looking at that very seriously, birthright citizenship, where you have a baby on our land, you walk over the border, have a baby – congratulations, the baby is now a U.S. citizen. … It’s frankly ridiculous,” Trump told reporters outside the White House

Most experts in this area of the law believe  that  he cannot do so constitutionally.  Birthright citizenship arises under the 14th Amendment, which holds that birth in the United States “and subject to its” jurisdiction results in automatic citizenship.  But some (like Trump) would argue that a person illegally in the United States is not “subject to” the jurisdiction of the United States.  Clearly, if jurisdiction means the “power” of the United States, anyone who steps over the border (other than foreign officials on a visit) is within the power of the United States.  But those against that reading rely on law such as  The Civil Rights Act of 1866, which granted U.S. citizenship to all persons born in the United States “not subject to any foreign power.”

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. While the Citizenship Clause was intended to define as citizens exactly those so defined in the Civil Rights Act,which had been debated and passed in the same session of Congress only several months earlier, the clause’s author, Senator Jacob M. Howard of Michigan, phrased it a little differently. In particular, the two exceptions to citizenship by birth for everyone born in the United States mentioned in the Act, namely, that they had to be “not subject to any foreign power” and not “Indians not taxed,” were combined into a single qualification, that they be “subject to the jurisdiction” of the United States, and while Howard and others, such as Senate Judiciary Committee Chairman Lyman Trumbull of Illinois, the author of the Civil Rights Act, believed that the formulations were equivalent, others, such as Senator James R. Doolittle from Wisconsin, disagreed, and pushed for an alternative wording.

I would point to the special constitutional rule governing the election of the President.  When originally drafted, the Constitution only required that the President be a citizen.  But later, and in the final draft, it required that he be a “natural born” citizen, which – following English common law – meant that he was born on the soil of the United States.  Thus, any person born on the soil of the United States can be its President.  This includes a child born of illegal immigrant parents, because “jus soli” is an ancient term and does not get involved with “jurisdiction” or its meaning.  

“Birthright citizenship, as with much United States law, has its roots in English common law.[28] Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that, under English common law, “a person’s status was vested at birth, and based upon place of birth—a person born within the king’s dominion owed allegiance to the sovereign, and in turn, was entitled to the king’s protection.” This same principle was accepted by the United States as being “ancient and fundamental”, i.e., well-established common law, as stated by the Supreme Court in 1898: “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.” United States v. Wong Kim Ark, 169 U.S. 649 (1898).”

Thus, a candidate for President and meeting the “natural born” standard should not be declared unqualified because his parents were illegal.  Therefore “subject to the jurisdiction” should not mean “not subject to a foreign power.”  In theory, this might mean that the child of a foreign ambassador might be qualified as “natural born,” although we can leave that sticky problem aside.  But a child born inside our borders of foreign parents is “natural born,” and that was the meaning in 1787.  The fact that it might be subject to the power of another country should not mean that it is not also subject to the jurisdiction of the United States.

Given, then, that the child of an illegal immigrant in the United States is a “natural born” citizen, it would be strange indeed if Congress meant that the child was not born “subject to the jurisdiction” of the United States. Of course, Congress may not have thought about the conflict with the “natural born” clause.  But a court faced with the situation would have to decide how one could be both a “natural born” citizen and yet not “subject to the jurisdiction” of the United States.  In and of itself, this should mean that the President lacks the executive power to resolve it by deciding that the children of illegal immigrants are not citizens.  That decision-making power should lie with the courts.

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