The Remedy for Birthright Citizenship

President Trump’s recent action to end birthright citizenship will eventually be decided in the Courts, and probably the Supreme Court.  There are conflicting opinions and political biases on birthright citizenship because the constitutional provisions of the 14th Amendment did not foresee the environment that has now brought the issue to the fore.

But as any first-year law student should be able to tell you (except at Harvard, Yale, Stanford, or the other few elites who have ceased to teach law in favor of ideology), here are the facts in the case.

The Constitution, especially the 14th Amendment, is the controlling and overarching law of the land concerning citizenship, immigration, and naturalization.  Before the 14th Amendment was enacted in 1866, there was no definitive statement on citizenship, even though citizenship was required in other sections of the Constitution — for example, qualifications for the office of the president. 

The 14th Amendment, Section 1, 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.

Citizenship by place of birth, jus soli, and place of birth alone, is not absolute or unlimited; otherwise, there would not be that condition “and subject to the jurisdiction thereof” in the Amendment.  The prevailing belief of those who argue that just being born in the geographic area of the United States is an automatic qualification for citizenship fail to account for this second and equally binding condition of citizenship in the United States.

The 14th Amendment, when enacted after the Civil War, was retrospective, not prospective.  It addressed a deficiency in the 13th Amendment that, though abolishing slavery, left freed blacks in a state of limbo, where they were not considered citizens of the United States or of many of the individual states.  It did not foresee the concept of non-citizen illegal aliens giving birth inside our borders, although in the debates, it did address other non-citizen parentage, like those in diplomatic residency.  However, with diplomats, there was never any doubt that they were representatives of their governments and definitely not subject to the jurisdiction of the United States.  Ask any New York cop around the United Nations building about that.  And what about the woman on a Mexico to London flight who delivers somewhere over Kansas?  Is that baby a citizen?  There may be a business opportunity in exploiting that concept.

There has never been a clear and unambiguous definition of the meaning of “and subject to the jurisdiction thereof” in the few court opinions that have tried to resolve the meaning of that conditional phrase.  Proponents who hold that just birthing in the territory of the United States is qualifying frequently cite United States v. Wong Kim Ark as the final determining Supreme Court judgment on birthright citizenship, but that decision was more focused on defining the jurisdictional status of the parents and reflected the scant immigration laws of 1898 and treaty provisions with the Empire of China on Chinese permanently resident in the United States.  The parents were judged to be in the United States legally.  The decision did not address mothers who were in the United States illegally.  (Note: As of January 20, mothers are once again considered the only ones who can birth babies.)

By treaties, convention, practice, and laws, we do not consider itinerant visitors to the United States fully subject to the jurisdiction of the United States.  Yes, they must obey our criminal laws, but they are not subject to other laws and obligations like a military draft or income taxes, and they may request intervention from their own government for problems that may occur while present.  If these legal visitors are deemed not fully subject to the jurisdiction of the U.S., how then can unauthorized illegal aliens be considered fully subject to American jurisdiction?

There is also citizenship by parentage, jus sanguines, whereby children born of American parents abroad are considered U.S. citizens.  With global travel, military stationing, temporary work assignments, and tourism, this is now rather common.  Ironically, if applied reciprocally to illegal alien parents, their children born in the United States would be considered citizens of the parents’ country.

Finally, with regard to the issues of the case, Section 5 of the same 14th Amendment states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

So what is to be done to resolve the problem of birthright citizenship?  There are three avenues.

  • Presidential executive order
  • New constitutional amendment
  • Congressional legislation under Section 5 of the 14th Amendment

President Trump has already issued a presidential executive order ending birthright citizenship.  A consensus, but not a unanimity, of legal scholars argues against this tactic.  It will most certainly be challenged and probably lose in the courts.

Relying on the courts, even the Supreme Court, is a chancy proposition.  The current Judiciary, at all levels, is no longer a reservoir of logic, justice, and trust, but implementers of politics and ideology.  Even at the Supreme Court level, it is a given that the three Democrat-appointed women will vote for unrestrained birthright citizenship.  A John Roberts, who at his confirmation said that his job would be to call the balls and strikes and not rewrite the rulebook to his desires, but then determined Obamacare to be a tax when even its authors and proponents argued that it wasn’t, is more likely to side with the ideologically driven Democrat women.  That brings the outcome down to one more vote.  Barrett?  Kavanaugh?  Who feels comfortable with that?

There is a small window of opportunity in this approach, however.  That is the precedence of the Biden and Obama administrations flouting the Constitution and Supreme Court rulings with student loan forgiveness and DACA edicts.  Unfortunately, too many courts have an animus for anything originating from or about Donald Trump to expect this outcome.

Next, a constitutional amendment with unambiguous wording on birthright citizenship would settle the question forever.  However, the logistics, timelines, and legislative procedural roadblocks required for this remedy are almost insurmountable, especially given the political divide in the current American body politic.  As long as political parties, particularly the Democrats, put party politics above America’s best interest, the amendment route is not viable.

Finally, there is the legislative pathway that is available in Section 5 of the 14th Amendment, whereby “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”    

It is surprising that in nearly all the debate about birthright citizenship, so little has been devoted to the remedies available to the Congress in Section 5.  In recent decades, the Democrats have controlled both the Legislative and Executive Branches of government twice, and the Republicans for the second time have now been granted a similar opportunity.  Yet neither exercised the option, although the Republicans have only newly acquired the power.

In the past, the Supreme Court has frequently affirmed that Section 5 empowers the Congress to define, expand, or constrain the other provisions of Sections 1 through 4 of the 14th Amendment, but with the exception of the aforementioned Wong case, these have mostly been with regard to other Amendment provisions, such as voting rights, equal protection, qualifications for officeholders, and state law precedence.  In addressing these other sections, however, these rulings overall have collaterally affirmed the Congress’s authority to determine, define, and thereby enforce what the 14th Amendment actually means regarding birthright citizenship.

Statutory law, specifically 8 USC 1401, already specifies the conditions and qualifications for American citizenship, but with regard to birthright citizenship, it adds no further enlightenment, because it uses the same language as the 14th Amendment: “born in the United States, and subject to the jurisdiction thereof.”

So it’s time for Congress to settle once and forever what is birthright citizenship.  It would start with the definition of birthright citizenship, which people are included or excluded, what rights are inherent, and what punitive actions are prescribed, and whatever else is necessary to remove the ambiguities in Section 1 regarding jus solis (geographic) births.

There is an opportunity on the political horizon to finally fix the problem.

Representative Brian Babin (R-Texas) has submitted legislation (H.R. 569) to better define the scope of birthright citizenship.  At first glance, it has voids that will need to be addressed through debate and compromise, but it is a first step.  His proposal would grandfather those who benefited in the past, would address parentage requirements, and would benefit aliens who serve in the U.S. military.  It would also look favorably on those who have established legal residency or applied for citizenship.

Using Section 5 legislation is the commonsense and pragmatic solution for resolving the debate over birthright citizenship.  Unfortunately, common sense is in short supply these days, lost in a sea of ideology, ignorance, profiteering, and politics.  The authors of the 14th Amendment did not and could not foresee the phenomenon of a wave of millions storming into the country illegally to gain a foothold for themselves and their progeny.  “Illegal aliens,” either in law or in actuality, did not exist.

The allure of birthright citizenship and the benefits it brings to law-breaking foreign parents (the child is ignorant of the new world around it) is a significant component of the border crisis.  Resolving the issue with clarifying legislation will remove this magnet, and the burden it places on the already generous taxpayers providing illegals free medical care, schooling, SNAP cards, housing assistance, and often legal residency rather than deportation.

For a second time in this decade, Americans have temporarily given control of the government to the Republicans, with one of the expectations, a most important one, being a resolution of the illegal alien invasion.  Their congressional leadership in 2017 failed in their passion to throttle the outsider Trump.  Will they fail again?

William Campenni is a retired engineer and Air Force pilot who has written on immigration and vote fraud for several publications.

<p><em>Image: Gage Skidmore via <a href="https://www.flickr.com/photos/gageskidmore/5440392565">Flickr</a>, <a href="http://creativecommons.org/licenses/by-sa/2.0/legalcode">CC BY-SA 2.0</a>.</em></p>

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.

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