“The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” the order said. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”
The beginning of section one states, “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.”
A big point of contention with the Fourteenth Amendment is the “subject to the jurisdiction thereof” clause.
For some, the clause means that anyone born on U.S. soil automatically becomes a citizen. For others, it means a child’s parents must reside in the U.S. and have responsibilities to the U.S. government, such as paying taxes, for the child to become a citizen.
There are already exceptions to the birthright citizenship section of the Fourteenth Amendment, such as for children of foreign ambassadors. It is reasonable, therefore, for Trump to assume that it would also except children of parents in the country illegally.
Under Trump’s new policy, only children of U.S. citizens or “lawful permanent residents” would get birthright citizenship.
In the battle between Trump and the Supreme Court, Trump may have legal precedent on his side.
In 1898, the Supreme Court heard the case of United States v. Wong Kim Ark. Wong Kim Ark was born in California, but spent an extended period of time in China in the 1890s. Upon returning, the U.S. government denied his reentry, claiming he was not a U.S. citizen because his parents were Chinese.
Wong Kim Ark fought all the way to the Supreme Court, where he won his case. The court ruled that the “subject to the jurisdiction thereof” clause meant subject to U.S. law, making Wong Kim Ark a citizen.
Those who enter the country illegally break the law when they cross the border. Trump could argue that illegal immigrants are not subject to the jurisdiction of the U.S. because they don’t follow U.S. law.
Even if Trump’s order is struck down, it will likely cause people to rethink the policy of birthright citizenship.
The House of Representatives is working on a bill that would codify Trump’s order into law. Rep. Brian Babin (R-TX) introduced the bill last week. Babin said the bill will restore the original intent of the Fourteenth Amendment, which originally applied to freed slaves and not illegal immigrants. He said the current interpretation of the amendment encourages illegal immigration through the promise of birthright citizenship.
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A law that ends birthright citizenship would likely need to be ratified as a constitutional amendment. Although unlikely, if successful, the U.S. could see its already-declining illegal immigration numbers drop even further under such an amendment.
Trump may be unsuccessful in the short term, but his order is a necessary step as Americans rethink the application of birthright citizenship.
This article was originally published at www.washingtonexaminer.com
