Trump's Latest Target — Birthright Citizenship
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Trump's Latest Target — Birthright Citizenship

By IndraStra Global News Team

Image Attribute: The flag of the United States of America / Source:

Image Attribute: The flag of the United States of America / Source:

On October 30, 2018, President Donald Trump announced his intention to bring an executive order and end the right to the US citizenship for children born in the United States to non-citizens and illegal immigrants (Jus soli). This announcement has invited widespread criticism, even from his own party.

"You cannot end the birthright citizenship with an executive order," said Congressman Paul Ryan, speaker of the US House of Representatives. "We didn't like it when (former President) Obama tried changing immigration laws via executive action, and obviously as conservatives, we believe in the Constitution," Ryan told a local radio station in Lexington, Kentucky.

Birthright citizenship may be conferred by jus soli or jus sanguinisJus soli, meaning "right of the soil", commonly referred to as birthright citizenship in the United States, is the right of anyone born in the territory of a state to nationality or citizenship. Whereas, Jus sanguinis is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Children at birth may automatically be citizens if their parents have state citizenship or national identities of ethnic, cultural, or other origins. Citizenship can also apply to children whose parents belong to a diaspora and were not themselves citizens of the state conferring citizenship. This principle contrasts with jus soli.

Trump's latest announcement would definitely bring in legal challenges which would force the courts to decide on a constitutional debate over the 14th Amendment [United States Constitution and the Immigration and Nationality Act (INA)], which  was adopted on July 9, 1868, as one of the Reconstruction Amendments, says:

"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."

This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands, and also applies to children born elsewhere in the world to U.S. citizens (with certain exceptions)

14th Amendment was proposed in response to issues related to former slaves following the American Civil War (in the aftermath of the Dred Scott Supreme Court case in 1857 which ruled that slaves and their children could not be US citizens). The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. However, until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants.

Here, the wordings are actually creating multiple interpretations, especially - "subject to the jurisdiction thereof" - which appears in both the constitutional amendment and the statute. Traditionally, this phrase has been interpreted to exclude only the U.S.-born children of foreign diplomats or of enemy forces engaged in hostilities on U.S. soil. But those skeptical of the legal basis for birthright citizenship say that the U.S. Supreme Court has never specifically ruled on whether the children of illegal immigrants would qualify for birthright citizenship since that wasn’t at issue in the Wong Kim Ark case.

The same window holds for the drafters of the 14th Amendment, legal experts say. "Because there weren't any federal immigration controls at the time the amendment was adopted in 1868, there's no direct evidence how the drafters intended it to apply to that category," Dr. Peter J. Spiro, a professor at Temple University Law School said.

Now, if the President attempts to end birthright citizenship through executive order, it will no doubt be tied up in extensive litigation. Ultimately the 14th Amendment is the domain of the Judicial Branch, not covered by Congress’ powers over naturalization or any Executive authority. As Assistant Attorney General Walter Dellinger testified in 1995, "because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution… The amendment’s purpose was to remove the right of citizenship by birth from transitory political pressure."

With reporting by Cornell Law School's Legal Information Institute, PolitiFact, and Reuters