President Trump indicated in an interview with Jonathan Swan of Axios that he plans to sign an executive order eliminating the concept of “birthright citizenship.”
Now, before we dig into the issue, consider the following: the President of the United States has announced that he is ready to unilaterally dismantle a key part of the 14th Amendment to the Constitution. In other words, he’ll be overturning a precedent that has existed for over a century and a half.
That doesn’t mean he’s wrong, however.
Trump reveals plan to eliminate birthright citizenship
But first, the story. Jonathan Swan reports:
President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for “Axios on HBO,” a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.
Here’s President Trump indicating his plan:
President Trump was clearly not ready to reveal his intentions. He admitted to Swan, “I didn’t think anybody knew that but me. I thought I was the only one.”
Here’s why Trump’s plan is such a huge deal.
Overturning birthright citizenship means overturning decades of precedence
The concept of jus soli birthright citizenship – meaning, anyone born on American soil is a citizen – in America was established by the 14th Amendment of the Constitution, which reads:
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.
A plain reading of the text supports our current practice of granting citizenship to anyone born on United States soil. But scholars, namely those of the conservative bent, have argued otherwise, that the intention of the 14th Amendment has been misconstrued.
Swan quotes one legal scholar:
John Eastman, a constitutional scholar and director of Chapman University’s Center for Constitutional Jurisprudence, told “Axios on HBO” that the Constitution has been misapplied over the past 40 or so years. He says the line “subject to the jurisdiction thereof” originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.
Michael Anton, a former national security advisor in the Trump Administration, published an op-ed in The Washington Post, arguing that birthright citizenship was never meant to be interpreted as a blanket granting of citizenship to anyone born on American soil. He writes:
The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.
Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.
Anton quotes authors of the 14th Amendment to get to the core of their argument when it comes to citizenship:
Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
With all that in mind, it doesn’t necessarily mean that Trump’s executive order will pass and birthright citizenship will immediately end. Trump will be challenging a constitutional amendment. It will immediately invoke a court challenge. In all likelihood, the battle over the order will go the Supreme Court, meaning it will take, at the very least, a year to resolve.
The timeline for eliminating birthright citizenship
We saw the timeline earlier this year when the Supreme Court upheld Trump’s travel ban, which he signed early in his term, in January 2017. The Supreme Court didn’t decide the issue until June of 2018. (RELATED: Supreme Court Upholds Trump Travel Ban.)
Eliminating birthright citizenship will likely take a lot longer to decide, given the complexity of the issue.
Regardless, Trump’s move to eliminate a part of the 14th Amendment is going to ignite a much-needed debate on what it means to be an American citizen. That debate is long overdue. That makes this move one of the most, if not the most, consequential move of his presidency.
Challenging a century-and-a-half old precedent in order to reorient what it means to be an American citizen is something only a president as audacious as Trump could pull off. We knew he’d be a disruptive president. But this is a whole new level of disruption.
