Birthright Citizenship is a Real Option
Birthright citizenship has been back in the news after Donald Trump claimed during a recent Meet the Press interview that the United States is the only country with birthright citizenship–which is patently false–and that the very concept is “ridiculous.”
“If somebody sets a foot–just a foot, one foot, you don’t need two–on our land, congratulations, you are now a citizen of the United States of America,” Trump said. “Yes, we’re going to end that because it’s ridiculous.”
I’ve seen an alarming number of people, including law professors and pundits, downplaying Trump’s efforts to end birthright citizenship, claiming the 14th Amendment says what it says, and the only way to change it is through another constitutional amendment. That is a mistake considering it’s the Supreme Court that interprets the Constitution, and we can’t trust the six conservative jamokes on the Court to do anything other than what their Federalist Society overlords tell them to.
But first, let’s get into what birthright citizenship even is.
Birthright citizenship is a right guaranteed by the Citizenship Clause of the 14th Amendment. The 14th Amendment 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.” Basically, the Citizenship Clause extends citizenship to anyone born on American soil.
It’s based on the concept of “jus soli,” which means “of the soil.” This type of citizenship isn’t the same as other forms of citizenship such as naturalization, which is granted to immigrants who are lawful permanent residents, or “jus sanguinis,” which means “of the blood.”
Birthright citizenship is not a new concept. The 14th Amendment was intended to replace the 1857 Dred Scott v. Sanford opinion of the Supreme Court, which held that Blacks could not be American citizens due to their race. The 14th Amendment changed that embarrassing analysis by extending citizenship to everyone born in America, regardless of race. Ark was refused reentry to the United States in that case under the Chinese Exclusion Acts which limited immigration from China, and prevented Chinese immigrants from becoming citizens. Ark was denied reentry because the U.S. government opposed it. He was born in San Francisco, to Chinese immigrants living in America. His parents were therefore “subject to jurisdiction” by the emperor in China. On this basis, the U.S. argued that Ark was also subject to the jurisdiction of the emperor of China.
The Supreme Court rejected this interpretation, and clarified what it meant by “subject to” in that the 14th Amendment extended citizenship to all Americans born in the U.S. except for Native Americans and diplomatic personnel who enjoy sovereign immunity. The crusade to end birthright citizenship has been ongoing for decades. In 1993, for example, then-Senator Harry Reid introduced legislation that would have ended birthright citizenship before he came to his senses and apologized–repeatedly–for having lost his head on the matter.
Despite having some support, the movement to end birthright citizenship never gathered much steam in the 1990s.
And then came Trump.
Along with Trump came his cronies; people like Trump attorneys John Eastman and Kenneth Chesebro, two architects behind the “Stop the Steal” movement who have also signed on to Trump’s tortured view of birthright citizenship. In a 2016 amicus for a case from the Obama era called Tuaua V. United States (Talking Points Memo), Chesebro referred to birthright as a “remainder of feudalism”. In Tuaua a group American Samoans sued to force the United States’ recognition of American Samoans birthright citizenship. They lost the case – the Supreme Court refused to hear it, and left in place a lower court ruling that unincorporated territory is not part of the United States as defined by the Citizenship Clause. As a result, people born in American Samoa do not have birthright citizenship. Under normal circumstances, if we did not have the most conservative court of modern history, any attempt to end birthright citizenship would be doomed from the start. Birthright citizenship is safe, given the current originalist trend of examining whether certain rights “deeply rooted” in our nation’s history (Justice Samuel Alito’s reasoning for removing abortion rights from Dobbs V. Jackson Women’s Health Organization). Any originalist interpretation of the 14th Amendment would require that the right to birthright citizenship remain steadfast.
But conservatives have been advancing an argument that would turn the 14th Amendment on its head while sneakily trying to maintain that originalist interpretation.
Take Fifth Circuit Court of Appeals Judge James Ho, for example. Ho defended birthright citizenship with an originalist approach in a paper published in 2006. A recent poll found that 49 percent of Americans think a child born to an illegal alien shouldn’t be eligible for U.S. citizenship. (41 percent disagree). According to legal scholars such as Judge Richard Posner, birthright citizenship can be repealed through statute. Members of the current Congress have introduced legislation and held hearings, following bipartisan efforts during the 1990s led by now-Senate Minority Leader Harry Reid and others.
“These proposals raise serious constitutional questions, however. The Fourteenth Amendment guarantees birthright citizenship. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
Cut to 2024, and Ho, now likely to be on Trump’s shortlist of Supreme Court picks should Alito or Thomas retire, has changed his tune. He says he still holds to that originalist interpretation with one exception. The 14th Amendment was not intended to be applied during war or invasion. In an interview with law professor Josh Blackman for Reason, Ho said:
“Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. Birthright citizenship does not apply to war or invasion. I’m not aware of anyone who has argued for the right to citizenship for children born to invading foreigners. “I can’t even imagine the legal arguments for this.” The scale of the effort to expel Chinese immigrants from America in the late 19th century was based on the same racism, nativism and other factors that are used today to remove and exclude Latin American immigrants. The current Latin American population is about 19 percent of the U.S. population. The current Latin American population is about 19 percent of the U.S. population.
Can’t you see Alito firing up his typewriter to muse that the 14th Amendment was intended to address the citizenship of formerly enslaved Black people, and not the citizenship of the children of undocumented immigrants who are invading our shores?
I sure can.
And even if, ultimately, the Supreme Court rules against Trump, chaos would ensue after Trump issues an executive order ending birthright citizenship. It would terrorize both documented and undocumented immigrants. That’s what the Trump administration is all about.
