Trump Says Birthright Citizenship Issue Will Go to Supreme Court

October 31, 2018 Updated: December 29, 2018

President Donald Trump says that the issue of whether children born to illegal immigrants or other foreigners in the United States should be automatically granted citizenship will go to the Supreme Court.

Trump made the declaration a day after an interview included him saying he plans to pen an executive order that would dramatically alter the way so-called birthright citizenship is granted.

Birthright citizenship is the practice of granting full citizenship to anyone born in the United States, including those born to parents who are in the country illegally, on a temporary visa, or as tourists.

On Oct. 31, Trump said: “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other.”

“It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree Harry Reid was right in 1993, before he and the Democrats went insane and started with the Open Borders (which brings massive Crime) ‘stuff.’ Don’t forget the nasty term Anchor Babies. I will keep our Country safe. This case will be settled by the United States Supreme Court!” he added.

Trump covered a lot of ground in two tweets, but he’s correct that the issue could be clarified in his favor by the Supreme Court, which recently tilted to a 5-4 clear conservative majority with the confirmation of Justice Brett Kavanaugh.

“The courts apparently have never ruled on the specific issues of whether the native-born child of unauthorized aliens, as opposed to the child of lawfully present aliens, may be a U.S. citizen or whether the native-born child of nonimmigrant aliens, as opposed to legal resident aliens, may be a U.S. citizen,” according to researchers from the Congressional Research Service (pdf).

Another possible solution could come from the Senate and Congress either in the form of a statutory amendment, which would further define language in the 14th Amendment to rule out birthright citizenship to non-residents, or a Constitutional amendment, which would require the ratification from three-quarters of the states in addition to two-thirds of Congress and the Senate.

Illegal aliens at border
Border Patrol Agents have illegal aliens remove their shoelaces and belongings before loading them in a van for transport in Hidalgo County, Texas, on May 26, 2017. (Benjamin Chasteen/The Epoch Times)

Amendment History

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.”

The sticking point is the “subject to the jurisdiction thereof” portion of the 14th Amendment, which was first interpreted by the Supreme Court in the 1873 slaughterhouse cases, relating to citizenship of African-Americans.

The majority opinion in 1873 said: “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Some argue that the Supreme Court ruled in favor of children of illegal aliens becoming U.S. citizens upon birth in the 1886 United States v. Wong Kim Ark case, but others note possible openings left by the case, such as the fact that the distinction in the ruling does not distinguish between illegal and legal presence in the United States, the Congressional Research Service researchers said.

Experts who say the issue is open to further interpretation also note the dissenting opinion written by two justices in 1886 and note the situation at that time was dramatically different, with the country not facing today’s waves of illegal aliens.

For instance, John Eastman, a constitutional scholar and director of Chapman University’s Center for Constitutional Jurisprudence, said that the Wong Kim Ark case didn’t definitively decide the issue, pointing to the Indian Citizenship Act of 1924, which wouldn’t have been necessary if Congress believed “that the Citizenship Clause itself confers citizenship merely by accident of birth.”

And Lino Graglia, a law professor at the University of Texas, argued in an analysis of birthright citizenship published in 2009, that the Wong Kim Ark case didn’t settle the law for children of illegal residents and actually seemed to be against granting citizenship to children of non-residents, as it stated that “children of alien enemies, born during and within their hostile occupation” shouldn’t become residents.

Others say the issue is not up for change, including Judge James C. Ho, who was appointed by Trump to the Fifth Circuit Court of Appeals in New Orleans.

He wrote in a 2011 Wall Street Journal op-ed that it would be “unconstitutional” to change how the 14th Amendment was applied to birthright citizenship.

In summary, experts are highly divided on whether Trump’s planned move adheres to the Constitution, but ultimately it will be up to the nine Supreme Court Justices to decide.


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