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Those Opposing Trump’s Threat to End ‘Birthright Citizenship’ Don’t Have a Slam Dunk Case


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President Donald Trump recently discussed the possibility of signing an executive order ending so-called “birthright citizenship” for babies of non-citizens born on U.S. soil — a move that would mark a major overhaul of immigration policy and trigger an almost-certain legal battle in light of the language in the 14th Amendment and the Citizenship Clause.

In response to Trump’s comments, Harvard law professor Laurence Tribe, for one, verbally attacked the president and his supporters.

“This fuxxxng racist wants to reverse the outcome of the Civil War,” Tribe claimed. He was referring to the 14th Amendment, which is often cited by media figures as a Constitutional guarantee to citizenship for anyone – including children of illegal immigrants – born in the United States.

“Over half a million lives were lost in that sacred cause. If you agree we can’t let this lunatic get away with that, SAY SO!!! If you’re silent, you’re complicit,” Tribe added in an apparent warning to Trump’s supporters. Tribe has in the past caught attention for accusing Trump of “terrorism” and calling for his impeachment.

Those that write off the president’s pledge to eliminate birthright citizenship based on precedent could be doing so prematurely, however. Here’s why.

The 14th Amendment states as follows: “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.” Putting aside the question of whether Trump may put an end to birthright citizenship by way of executive order, one major area of contention revolves around the “subject to the jurisdiction thereof” language in the 14th Amendment.

At first glance, Trump’s pledge to end birthright citizenship appears to be short-lived in light of the United States v. Wong Kim Ark case, which the Supreme Court decided in 1898. In Wong, the court answered the following question:

Whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States?

In answering this narrow question affirmatively, the court was very specific in its holding, stating:

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution

The court’s holding was specific and narrow insofar as that the court did not hold that all U.S.-born children of all foreign nationals are U.S. citizens. Rather, the court’s ruling specifically addressed the question of “whether the U.S.-born child of parents who were lawfully and permanently domiciled in the United States and not employed in an official capacity by the Chinese government was a U.S. citizen by birth?”

Significantly, and as the court pointed out, at the time of Wong’s birth, his mother and father were domiciled residents of the United States and had established and enjoyed a permanent domicile and residence in San Francisco. As previously explained by John Eastman in the National Review:

“Domicile” is a legal term of art; it means “a person’s legal home,” according to Black’s law dictionary, and is often used synonymously with “citizenship.” Wong Kim Ark’s parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were “domiciled” in the United States, which is to say, lawfully present in the United States.

Additionally, Wong’s parents “continued to reside and remain in the United States until the year 1890, when they departed for China.” Finally, during all the time of their residence in the United States as domiciled residents, they were “engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China.” Therefore, Wong’s parents did everything they could to become U.S. citizens. Therefore, in light of the specific set of facts and the narrow question that the court addressed, one could argue that Wong does not settle the “birthright citizenship” question in its entirety.

If Wong does not settle the issue, one major issue of contention will likely revolve around the meaning of the term “subject to the jurisdiction thereof,” as set forth in the 14th Amendment. The president/administration could argue that the 14th Amendment “was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.” In other words, if a parent is in the country illegally and is, therefore, not subject to the jurisdiction of the United States, then, by association, neither is his/her newborn child. In 1884, the Supreme Court addressed the “subject to the jurisdiction” issue in Elk v. Wilkins. Again, as Eastman explained:

The Supreme Court held in that case that the claimant — a Native American born on a tribal reservation — was not a citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court, thereby making clear that its holding was about allegiance and not the reservation’s geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”

The president’s opponents, on the other hand, could possibly interpret this provision to mean “the legal obligation of all foreigners and immigrants to follow U.S. law.” Simply stated, a child that is born to an illegal immigrant in the U.S. is automatically a citizen because he/she is obligated to follow U.S. law. The only thing that matters is the country of birth. In his National Review piece, Eastman addressed some potential problems with this latter argument. He also pointed to an interesting distinction between the language utilized in the Citizenship Clause and that used in the Equal Protection Clause [emphasis added]:

Unlike the Citizenship Clause, which uses the phrase “subject to the jurisdiction,” the Equal Protection Clause bars a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” The phrase “within its jurisdiction” is territorial, whereas the phrase “subject to the jurisdiction” is political.

Given the sensitive nature of this very difficult and contentious issue, if the president moves forward with his pledge to end “birthright citizenship,” the Supreme Court may, once again, be asked to render judgment and to end the debate.

Mr. Hakim is a political writer and commentator and an attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications. Twitter: @ThoughtfulGOP.

[Image via Chip Somodevilla/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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