Michael Bryan and I have done many posts on this topic since 2010. But here is one I did from 2015 that predicted today’s move by “Dear Leader.” The Mass Deportation Party wants to nullify constitutional ‘birthright’ citizenship (excerpt):
“Birthright” citizenship is contained in the 14th Amendment, Section 1. It is not a “policy,” it is a constitutional right. If Steve “cantaloupe calves” King wants to change this, it will require a constitutional amendment. But his bill is proceeding on the assumption that he can nullify this constitutional provision by a simple legislative act. The right-wing National Journal even goes so far as to suggest that the “next president” (presumably a Republican) could do this by an executive order. This is how unhinged the leaders of the Mass Deportation Party are.
Cue today’s New York Times report, President Wants to Use Executive Order to End Birthright Citizenship:
President Trump said he was preparing an executive order that would nullify the long-accepted constitutional guarantee of birthright citizenship in the United States, his latest attention-grabbing maneuver days before midterm congressional elections as he has sought to activate his base by vowing to clamp down on immigrants and immigration.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” Mr. Trump told Axios during an interview that was released in part on Tuesday, making a false claim. “It’s ridiculous. It’s ridiculous. And it has to end.”
Mr. Trump’s plan met with swift pushback from some even in his own party on Tuesday. House Speaker Paul D. Ryan of Wisconsin, who is retiring, said in an interview that the president “obviously” cannot eviscerate birthright citizenship by executive order.
“You obviously cannot do that,” Ryan told WVLK, a radio station in Lexington, Ky. “I’m a believer in following the plain text of the Constitution, and I think in this case, the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”
The GOP’s alleged boy genius is correct, for a change. Back in 2010 I explained in detail in Tea-Publican priority: Not jobs, but repeal of 14th Amendment citizenship:
The Citizenship Clause of the 14th Amendment provided a broad definition of citizenship that overruled the decision of Dred Scott v. Sandford (1857) which held that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship.
While the 14th Amendment was primarily intended to overrule Dred Scott and make sure that freed slaves and their children were granted U.S. citizenship, it was not limited to freed slaves. Congressional debate of the Citizenship Clause included lengthy debate over Native Americans, Chinese immigrants in California, and Gypsies.
Sen. Edgar Cowan of Pennsylvania, a raging racist who voted against the 14th Amendment, expressed his concerns during debate that the people of California would be “overrun by a flood of immigration of the Mongol race,” and “Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies.”
The Citizenship Clause has been interpreted by the U.S. Supreme Court to mean that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee — legally termed jus soli, or “right of the territory,” as opposed to jus sanguinis, or “right of blood,” previously existed under English common law.
The Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that “where birth in the United States was clear, a child of Chinese parents was, in the Court’s opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law.” (Chinese Exclusion Act).
The Court stated that long before the adoption of the 14th Amendment, “all white persons” born in the U.S., including children of “foreigners,” were considered native-born citizens (provided that they were not “children of ambassadors or public ministers of a foreign government”), and that “[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” The Court further stated:
The foregoing considerations and authorities irresistibly lead us to these conclusions: 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.
It does not appear to have been suggested in either House of Congress that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment.
Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.
Tea-Publicans say the 14th Amendment does not apply. The amendment states that anyone born in the United States and “subject to the jurisdiction thereof” is a citizen. ‘Birthright citizenship’ will be target of House GOP majority. “King said the amendment would not apply to the children of illegal immigrants because their parents should not be in the country anyway.”
Opponents of birthright citizenship misrepresent the words of Sen. Jacob Howard, Republican of Michigan, who proposed the Citizenship Clause and stated on May 30, 1866:
Mr. HOWARD: This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.
Opponents of birthright ciizenship claim Sen. Howard intended two separate classes of persons: foreigners and aliens; and children of ambassadors and foreign ministers. But nothing in the Congressional Record of debate of the Citizenship Clause supports this fictitious claim.
James C. Ho, the solicitor general of Texas who previously clerked for Justice Clarence Thomas, worked in the Bush administration, and served as chief counsel to Sen. John Cornyn (R-TX), wrote in 2006 that “no Senator disputed the meaning of the amendment with respect to alien children” and “nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens.” Ho further wrote:
Repeal proponents contend that history supports their position.
First, they quote Howard’s introductory remarks to state that birthright citizenship “will not, of course, include … foreigners.” But that reads Howard’s reference to “aliens, who belong to the families of ambassadors or foreign ministers” out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies.
Rep. Steve King and Arizona’s shadow governor, state Senator Russell Pearce, are pursuing legal fictions by anti-immigrant organizations that they can simply legislate restrictive language into the broadly defined Citizenship Clause of the 14th Amendment. Their disingenuous arguments are legally incorrect. The only way to amend the Citizenship Clause of the 14th Amendment is by a constitutional amendment. It would have to be approved by Congress and ratified by 38 state legislatures. This is not even remotely a possibility.
As the Times report says:
Doing away with birthright citizenship for the children of undocumented immigrants was an idea Mr. Trump pitched as a presidential candidate, but there is no clear indication that he would be able to do so unilaterally, and attempting to would be certain to prompt legal challenges. The consensus among legal scholars is that he cannot, but Mr. Trump and his allies are eager to test it in the Supreme Court.
“We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether the language of the 14th Amendment — ‘subject to the jurisdiction thereof’ — applies specifically to people who are in the country illegally,” Vice President Mike Pence told Politico in an interview on Tuesday, several hours after Mr. Trump’s comments were reported.
Mike Pence is wrong, as usual. The Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that “where birth in the United States was clear, a child of Chinese parents was, in the Court’s opinion, definitely a citizen under the Fourteenth Amendment” (see above).
The only conceivable reason for doing this is that the five conservative activist justices on the U.S. Supreme Court will ignore the congressional history of the 14th Amendment and overturn long-standing Supreme Court precedent.
Oh wait, this is exactly what conservative activist justices do. GOP authoritarianism has corrupted the Supreme Court as much as it has our politics. Admit it. Republicans have broken politics. You have been warned.