In late October 2018, President Donald Trump announced that he is preparing an executive order with the intention of nullifying the long-accepted constitutional guarantee of birthright citizenship in the United States. “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 stated during an interview. “It’s ridiculous. It’s ridiculous. And it has to end.”
The right in question is guaranteed by the Fourteenth Amendment of the Constitution, which states, “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.” Since it is a Constitutional amendment and not just a law, legal consensus is that this right is not able to be overruled by executive order. Therefore, many have speculated on Trump’s motives behind making this announcement. That being said, the Republican Party has had a tumultuous relationship with this Amendment for some time now. Trump’s plan in and of itself met resistance from many in his own party, leaving the public, who are preparing to vote in the rapidly approaching 2018 midterms, questioning the Republican views on birthright citizenship.
History of the 14th Amendment
Many Republican lawmakers, as well as Republican voters, have supported the idea of birthright citizenship in recent years, which made the President’s announcement particularly shocking. Another historical significance that many have pointed out is the fact that the 14th amendment and birthright citizenship rank among the great and defining accomplishments of the Republican Party, back when it was the Party of Lincoln. American historian Eric Foner was one of the first to point this out, stating “This was one of the historic achievements of the Republican Party. There’s plenty of irony here.” The amendment was originally passed and ratified after the Civil War to ensure the citizenship of former slaves. This came after the Civil Rights Act of 1866, which was passed by Republicans in Congress and defined all people born in the United States as citizens. The 14th amendment was then passed to make African American citizenship irreversible. While obviously this does not directly parallel the situation being debated today, Foner says that there are some similarities, notably in the overall tone of Republican efforts to pass the amendment at the time.
Foner explained, “The idea was that citizenship should be extended to people regardless of accidental characteristics, such as race, national origin, or the status of their parents. This established a national standard for citizenship. The principle was one of opportunity and inclusiveness. That’s what the Republican Party stood for. The 14th amendment became one of the defining principles of the Republican Party.” Foner continues on to explain that there is, in fact, precedent of the amendment being used in this way by those that created it. “The equivalent back then would have been the Chinese in the U.S.,” Foner says. “They could not become naturalized citizens. Nonetheless, their children born here were citizens under the 14th amendment.” This is particularly important when you look at the arguments of many modern-day Republicans regarding their disagreement with the amendment.
Pushback on Trump’s Announcement
Possibly the most outspoken of Trump’s opposition was House Speaker Paul Ryan of Wisconsin. Not only did Ryan speak out against Trump’s plan to overrule an amendment to the Constitution with an executive order, he spoke out against the entire motive, stating, “You obviously cannot do that. 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.” He went as far as to compare it to other actions that Trump himself deemed unconstitutional, citing Barack Obama’s 2012 action to grant work permits and deportation reprieves to some undocumented immigrants brought to the United States as children. Trump, among others, adamantly protested this action as a naked abuse of presidential power. However, some have speculated that this comparison is exactly why Trump has brought this argument to light. Some have claimed that Trump’s efforts are not actually tied to a desire to eliminate the 14th amendment, but rather to point out the hypocrisy among those who have fought against similar actions with more liberal motives in the past. Some have also speculated that all of this is a smokescreen as the midterm elections draw near, and that he is trying to appeal to voters by making dramatic claims.
Further Republican dissent came from Bob Hugin, Republican Senator candidate from New Jersey, who stated in a tweet, “The President is wrong to end #BirthrightCitizenship. We’re a nation of immigrants made better by the diversity of its people, especially in NJ. We need compassionate comprehensive immigration reform now.” Marco Rubio and Jeb Bush have also been notably vocally opposed. Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, went further, calling the idea illegal and offensive. Clarke said, “Aside from being unconstitutional, such an executive order would exacerbate racial tensions, exploit fears and drive further polarization across the country at a moment that calls for the promotion of unity and inclusion. The letter and spirit of the Fourteenth Amendment places those born in this country on equal footing, and an executive order that strips away citizenship would create a permanent group of second-class citizens and invite litigation.”
Whether the above is true, Trump has some supporters who are in favor of doing away with the amendment in question. Perhaps Trump’s closest ally in this endeavor is Vice President Mike Pence, who stated, “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.” Other supporters of Trump’s movement include Bobby Jindal, Rand Paul, Rick Santorum, Ben Carson, and Lindsey Graham.
Arguments Against the 14th Amendment
While the Republican Party may have birthed the 14th amendment, it’s particularly important to note that Republicans in every single Congress since 1991 have introduced legislation to undo birthright citizenship. Many conservatives have long made the argument that the 14th Amendment was not meant to apply to illegal aliens, but rather only to citizens and legal permanent residents. It is this reading of the amendment that has led Republicans to believe that an executive order could change birthright citizenship. Michael Anton, a former spokesman for Mr. Trump’s National Security Council, has previously stated that birthright citizenship was in fact based on a misreading of the amendment, and of an 1898 Supreme Court ruling that pertained only to the children of legal residents. Anton stated, “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. An executive order could specify to federal agencies that the children of noncitizens are not citizens.”
The 1898 Supreme Court decision that Anton cites held that Wong Kim Ark, who was born in San Francisco to Chinese parents residing in the United States, was a citizen because of his birth on American soil. Mr. Anton that because his parents were legal residents, the ruling should not be read as an affirmation of the status of children of undocumented immigrants. However, other legal professionals disagree with this interpretation. Stephen Legomsky, a Washington University School of Law professor and former chief counsel for U.S. Citizenship and Immigration Services, believes that the 14th Amendment’s application to the children of undocumented immigrants is a matter of pure common sense, stating, “Like anyone else, native-born Americans, whoever their parents are, can be charged with crimes if they disobey U.S. law. How would this be possible if the U.S. had no jurisdiction over them?”
- President Wants to Use Executive Order to End Birthright Citizenship – The New York Times – https://www.nytimes.com/2018/10/30/us/politics/trump-birthright-citizenship.html
- Birthright citizenship was one of the Republican Party’s greatest accomplishments. Now some Republicans want to end it. – The Washington Post – https://www.washingtonpost.com/blogs/plum-line/wp/2015/08/18/birthright-citizenship-was-one-of-the-republican-partys-greatest-accomplishments-now-some-republicans-want-to-end-it/?utm_term=.0c35af97db0a
- The GOP’s Birthright Citizenship Flip-Flop – Politico – https://www.politico.com/magazine/story/2015/08/the-gops-birthright-citizenship-flip-flop-121646
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