The 14th Amendment says:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
President Trump says he will issue an executive order abolishing the birthright of US citizenship for children born by illegal immigrants. That would be altering the 14th Amendment which makes no exception for the children that were born by illegal immigrants in this country.
Trump also says he will stop granting asylum to illegal immigrants.
Article 31 of the UN Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, prohibits signatory nations from imposing penalties on refugees who entered illegally in search of asylum if they present themselves without delay.
Although the U.S. did not sign the original act, it did become a signatory to a 1967 Protocol.
If Trump issues his executive order on the birthright of children, expect immediate court challenges with the granting of temporary injunctions until the cases are finally settled by the Supreme Court.
Most legal scholars believe such an executive order violates the 14th Amendment. It would take an act of Congress or an amendment to the 14th Amendment for the denial of birthrights to children born by illegal immigrants.
It is doubtful that Congress would alter the 14th Amendment, but if it did, that too would be challenged in court. And an amendment to the 14th Amendment is not about to happen.
When Trump’s childbirth order hits the Supreme Court expect it to be struck down. I predict that Trump’s court appointees Neil Gorsuch and Brett Kavanaugh will vote against his executive order.
Reports say Trump’s lawyers have advised him that he is within his right to issue an executive order abolishing the birthright of children born of illegal immigrants. That must be Rudy Giuliani who told Meet the Press on August 19 that “truth isn’t truth.”
While it sounds somewhat far-fetched, if Trump’s executive order is upheld, what would prevent him or a future president from altering the 1st Amendment by restricting free speech or controlling the press.
If Trump issues an order to stop granting asylum to illegal immigrants, that too will be quickly challenged in court. While that order may amount to violating international law, it is not altering our Constitution. The courts may nevertheless rule that the US is obligated to abide by the UN refugee convention.
What we have here is simply political posturing before the mid-term elections. When the dust settles several months from now, we may well find that it’s all much ado about nothing. Children born to illegal immigrants in this country will still be US citizens and asylum will still be granted to some illegal immigrants.
I’m with Trump on both counts, but my opinion does not count.
Gail Stanart says
I care about the constitutionality of the so-called “birthright citizenship” issue; but I don’t care about international law.
Bob Walsh says
I agree with Gail. I do not give a rat’s ass about international law and how it affects our internal legal issues, because it shouldn’t. I personally doubt that Trump has the ability to do this by himself. I also feel that it should in fact be done. Birth right citizenship is one of the MAJOR attractions to aliens entering this country. Get rid of the attractant, the problem gets a lot better real damn fast.
Foolme says
The words of the 14th Amendment are very clear. Denying it only expounds your ignorance.
Warren Fawcett says
Google what the actual sponsor said about the 14th amendment. He said parents have to be U.S. citizens for the child to be a U.S. citizen. Period. End of story.
Howie Katz says
The Amendment says what it says, regardless of what the sponsor intended. If he wanted the parents to be US citizens he should have worded the Amendment to say so.
Jim in Conroe says
All Amendments to the Constitution are open to interpretation, and the First has been interpreted, and its coverage expanded, on many occasions.
The phrase “subject to the jurisdiction” was originally applied to freed slaves and foreign diplomats, but was not interpreted to apply to anyone born on US soil until much later. The alternative is to consider a person born to parents who are not citizens of the US to be under the jurisdiction (for example, for passport purposes) of the country to which the parents are citizens. There is some evidence that this was the original intent.
Undoubtedly, this should end up in the Supreme Court, where the originalists and literalists on the Court will have to make such an argument, if the US is to move away from jus soli.
PeterD says
Howie, while I’m skeptical such an executive order will be enforced, at least Trump is trying the kind of outside the box thinking he has promised. Besides, you can’t make positive change unless you at least try. Jim makes a good point on jurisdiction, the only case SCOTUS heard involved someone whose parents were here legally.
As far as the international law comments, and our country has never been particularly fond of following such laws when it didn’t care to, consider your own quote:
“in search of asylum if they present themselves without delay”. That act imposes two duties on refugees; 1) that they be searching for asylum and 2) that they present themselves WITHOUT DELAY (emphasis mine). Most illegals are not searching for asylum, they are searching for better economic opportunities and you might have noticed that they rarely present themselves at all to authorities for the purpose of gaining refugee status.
So just like our previous discussion on what is or isn’t constitutional, it really depends on what any 5 Justices say, not liberal hand wringers. As far as what legal scholars agree upon, I don’t recall all of them being polled on the topic so projections of their beliefs aren’t very convincing. So while this may well be another political stunt timed for the midterm elections, I’d like to see it played through despite the threat of lawsuits.
Jim says
The key here is what “and subject to the jurisdiction thereof” means.
Is an illegal immigrant subject to the jurisdiction of the uSA in the sense of this phrase? I don’t think so, but this amendment was poorly written in various ways and unclear in it’s verbage.
If I go on vacation to Mexico, am I then subject to it’s jurisdiction? In a sense, yes, but obviously not in the sense of this amendment, otherwise all people born here would be subject to it.
If I am illegally present in Mexico, am I subject to it’s jurisdiction? In the sense that I have to follow their laws, yes, but not in the sense that this amendment is referring to.
Since the word itself is unclear, we would be wise to look at the intent of the author and of the Congress who passed it. From that, it is clear that they did not intend to give citizenship to illegals
To say that Trump is trying to overturn the Constitution is therefore disingenuous.
You lose further credibility when you refer to international law. What matters is the Constitution and laws made in pursuance thereof, not any other laws.
I wish to remain anonymous says
I couldnt have said it better myself AND these illegal migrants are simply taking advantage of what they see as a loophole. It is high time that is put to a stop.
Carey says
If the words of the Amendment are so clear why did the Supreme Court rule in Elk v. Wilkins that it did not grant American Indians citizenship? Would they not have more right to citizenship than someone playing Red Rover with the Boarder Patrol or a woman taking a Western vacation?
As for asylum the first requirement is that they present themselves without delay and then we need to define what qualifies as “need of asylum.”
Tom says
It’s scary but Howie and I are in almost complete agreement. One of us must be wrong about something. However, a few comments on other commenters.
Bob and Gail, if you don’t give (in Bob’s words) a rat’s ass about international law, you don’t give a rat’s ass about the Constitution. Article VI, section 2 makes the Constitution, acts of Congress and treaties “under the authority of the United States” the supreme law of the land. Treaties ratified by the Senate have the same precedential value as an act of Congress.
Jim in Conroe: be careful about the “subject to the jurisdiction” clause of the 14th Amendment. The Supreme Court in 1898 in the Wong case held that means only diplomats and invading troops occupying parts of the United States. If we bring illegal aliens under that clause, you might run into the law of unintended consequences. If they are like diplomats not subject to the jurisdiction of the United States, that means they can’t be sued, arrested or tried for any crimes. And being subject to the jurisdiction of the United States is a binary state like pregnancy. You either are or you are not.
When Jim vacations in Mexico, he is subject to the jurisdiction of Mexico. If you violate a Mexican law you can end up in a Mexican jail. The U.S. ambassador and diplomats at the embassy cannot be.
A diplomat can set up a machine gun on second base at the world series and spray the crowd and he can’t be charged with a crime. All the US can do is declare him persona non grata and have him leave the country. You can bet that MS 13 (a gang actually formed in Los Angeles) and members of various Mexican drug cartels would love not to be subject to the jurisdiction of the United States.
Ever since Marbury v. Madison in 1803, it has been the job of the judicial branch to interpret the law. That decision drove President Jefferson mad even though he won the case. Presidents get to stand in front of the Supreme Court and argue for interpretations of laws and the Constitution but it is judges who decide. I don’t know how readers of this blog feel about the ACA (Obamacare) but I can guess. The Supreme Court found parts of the law unconstitutional. How would you have liked it if Obama could have reversed that interpretation with an executive order?
Jim (not from Conroe): If you read the decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898), you will see that Justice Gray traced the meaning of the “subject to the jurisdiction” clause from the English common law through congressional debates and interpretations given it by the Grant Administration and later.
Chief Justice Fuller and Justice Harlan dissented strongly but Justice Gray’s opinion is the holding of the Court.
Pat Bryan says
I think that it is funny hah-hah, not funny strange, that there are just tons and tons of self-described conservatives that two years ago believed in the literal word of the Bible, and two weeks ago believed in the literal word of the US Constitution.
What syntactic and moral gyrations they have done to accommodate their President, in public yet!
So at this point I would like to share that the Originators of the 14th Amendment intended for ‘due process’ to apply ONLY to those who could correctly interpret the black-and-white meaning of the Constitution.
Also Jesus intended the Kingdom of Heaven to apply ONLY to those who could correctly interpret the black-and-white meaning of Matthew 25, and not take a break right after the Foolish Virgins.
Fat Albert says
Pat:
I think it’s funny (both ha, ha, ROTFLMAF and weird beyond belief, when folk yoke you attempt to quote the Bible to make some point. Please dude, just stop! It’s obvious that you spend little if any time actually reading or studying the Bible. It’s an insult to those who take their faith seriously.
If you can’t make your point otherwise, then perhaps you don’t have a point to make. (BTW, your grasp of Constitutional jurisprudence ain’t too solid either. Maybe just stick to fixing computers, eh?