On Tuesday, 30 October, in an exclusive interview with “Axios on HBO,” Trump stated that in the foreseeable future he will be ending birthright citizenship for illegal immigrants through executive order. He said that the idea that a person can illegally come into the United States, have a baby and “the baby is essentially a citizen of the United States ... with all of those benefits… It's ridiculous. It's ridiculous. And it has to end." This isn’t the first time that Trump has expressed opposition to this policy, making similar headlines in August 2015 when he was still a candidate in the Republican primary. But can Trump really carry out this action through executive order, and is he right to scrutinize the current understanding of the 14th amendment?
Trump thinking that he can change the constitution or its interpretation through executive order is almost certainly presidential overreach. It is up to Congress and the 50 states of the Union to decide whether or not the Constitution is amended and it is up to the Supreme Court to interpret the Constitution to determine if a law or executive order is unconstitutional or not. If this does indeed go to the Supreme Court then President Trump will be immediately shut down for trying to change constitutional law and interpretation. However, then comes the issue of whether Trump right to say that the children of illegal immigrants are not automatically citizens of the US.
For this, we will have to go back to the late 1800s and look to the men who wrote the 14th amendment and the Supreme Court cases that determined its precedent. First, what does the 14th say? Section 1 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 14th amendment was written in 1868 as a way for the federal government to grant citizenship to all former slaves and to reaffirm the Civil Rights Act of 1866 due to fear that many states in the Union would not allow former slaves to be citizens and enjoy the rights and privileges provided. Most of the current debate revolves around the key phrasing of “and subject to the jurisdiction thereof” and its relation to the Civil Rights Act of 1866 which granted citizenship to “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”
The purpose of this wording can be found by looking to key figures on the drafting and ratification of the 14th amendment. Senator Jacob Howard (R-MI), a sponsor of the citizenship clause, stated it “is simply declaratory of what I regard as the law of the land already,” further explaining with “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” When asked what the phrase “and subject to the jurisdiction thereof,” meant Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee, stated “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” Senator Howard would actually respond to this stating “I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States... that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Now since only US citizens can own complete allegiance and are subject to the “complete jurisdiction thereof” to the United States this exchange would suggest that only the children of American citizens can automatically become citizens. It also works in Trump’s favor that the Supreme Court has never ruled on whether the children of illegal immigrants automatically become citizens of the US since they were born the US. The closest case that has been ruled on was from the 1898 case of United States v. Wong Kim Ark. In the case, it was ruled that the children of a Chinese immigrant couple who immigrated to and resided in the US legally were deemed US citizens. Another case often cited is the 1982 case of Plyler v. Doe where the ruling was a 5-4 vote but which contains a dictum, meaning that the ruling was based on opinion and is not binding.
However, until Trump actually issues the executive order we can not know for certain what the reaction from Congress and the Supreme Court will be. Until this action becomes reality all we can do is speculate as to whether or not this action is unconstitutional and whether or not Trump would be right.