Trump’s Move To End Birthright Citizenship – Transparently Political, Not A Serious Move At All

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President Donald Trump has announced that he’s going to issue an executive order ending the strict application of birthright citizenship. This should be seen as a naked piece of political posing, not a serious suggestion at all. Hey, you know, we’ve elections next week, that’s what this is about, not a real and determined effort to change the Constitution. As such it may well work of course but there’s not going to be any change in the current process this decade.

So when President Trump hints that he may try to strike down birthright citizenship as a move against illegal immigrants who give birth in the United States, I can only wince at the thought of what this may do for generations to come.

That’s the suggestion, that citizenship should only go to those whose parents were here legally. Which isn’t what the current system is – birth is birth, whether the womb popped out of was here legally or not.

President Donald Trump has revealed that he plans to sign an executive order that would remove the right to citizenship for babies of non-U.S. citizens and undocumented immigrants born on U.S. soil.

In an excerpt of an interview with Axios, which is set to air on HBO on Sunday, the U.S. leader said that he has already run the idea of ending birthright citizenship by his counsel and plans to introduce an executive order ending the longstanding right.

The President can sign an executive order declaring anything he wants. Whether it stands as a matter of law is another thing. Here this runs directly into the Constitution:

The president said in an interview published on Tuesday that he would make the move through an executive order but citizenship is granted to U.S.-born children under the 14th Amendment of the Constitution, which cannot be changed by the president. That would require action by Congress and U.S. states.

Quite so:

At least since 2005, Republicans in the U.S. Congress have regularly offered legislation ending birthright citizenship for children born in the United States if their parents were in the United States illegally. But the legislation has never advanced, even when the House of Representatives or Senate was under Republican control.

Indeed. The US Constitution is deliberately difficult – but not impossible – to change. Everyone in DC has to agree, House, Senate, and then three quarters of the States. Only then does it actually change. There have been arguably bad changes – the income tax say – and good ones like the abolition of slavery. But it was set up to be difficult, precisely so that no populist wave could sweep through the country and change the basic system before people woke up to what they were doing. The Founding Fathers deliberately insisted there should be deliberation.

The reason the Republicans have been offering but not really pursuing such legislation is because there’s some portion of the electorate who are tickled by the idea. The reason the Constitution won’t be changed is because there isn’t the requisite majority – or even plurality. Which is why Trump is proposing this executive order now. He knows, everyone knows, that it’s not going to stand just as an order. That the Constitution requires changing to make the idea work. But we’ve an election a week away, tickling that portion of the voters is worth it, even if nothing subsequently happens.

Ending birthright citizenship? About as worthy an idea as Bernie’s free everything for everyone. And about as likely to become law too – but we do have an election, don’t we?

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TDTim WorstalljghEsteban DeGolfBniC Recent comment authors
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TD
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TD

One of those subjects about which reasonable people could debate, and possibly it’s worth a discussion, but I doubt if anyone feels strongly enough about it to actually try to push it through the amendment process, though certainly any executive order would be readily litigated.

BniC
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BniC

Apparently the defining Supreme Court case involved someone whose parents were legally in the US so an Executive order to immigration staff to treat legal vs illegal parentage differently could trigger legal challenges that if successful refined the legal interpretation without a constitutional change.An order on its own would not be enough just a first step, also incredibly distracting for the left as they raged around about this you have to wonder if it’s a distraction for something else

Esteban DeGolf
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Esteban DeGolf

My understanding is that it is not clear that the Constitution provides for birthright citizenship. Also, that birthright citizenship was not U.S. practice for most of our 242 years of existence. Third (just FYI) birthright citizenship is extremely rare (I think just Canada & the U.S.). The language in the Constitution specifies that it applies to persons “subject to U.S. jurisdiction” – this is the key phrase upon which the decision could turn. A bit like the 2nd Amendment’s language re: “a well regulated militia”, the jurisdiction language opens up a debate about whether this applies to persons here illegally.… Read more »

jgh
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jgh

I can see any leverage on this would target the “and subject to the jurisdiction thereof” part of the 14th amendment. Argue that children of illegal immigrants are not “subject to the jurisdiction”, that they are subjects of a foreign jurisdiction, as with diplomatic staff, and so don’t benefit from the 14th amendment soil birthright.

TD
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TD

Going back to the political argument, it is an interesting tactic. Trump may argue (and possibly issue an executive order that is promptly litigated) that a baby’s parents need to have been in the U.S. as legal residents in order to immediately be considered a citizen. Children born to illegal residents or tourists would not. To many people that would sound pretty reasonable. I think that’s how Australia does it. His opponents are then left screaming that no, the parents’ legal status should be irrelevant as per the constitution. They are defending the current status, which to many would seem… Read more »