Birthright citizenship is a policy granting American citizenship to children born in the United States to alien parents who do not have a legal status in this country. President Trump announced that he wants to end this policy as he believes it is unconstitutional. This policy, in other words, grants U.S. citizenship to anyone who was born in the country, period.
Photo: Carlos Garcia Rawlins/Reuters - The Central American Migrant Caravan Headed to the United States
It's Completely Unconstitutional
Contrary to what many on the left want to believe, birthright citizenship is indeed unconstitutional. The exact words of the 14th Amendment state: “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.”
Why is this important? Those who advocate for this policy overlook the “subject to the jurisdiction thereof” clause. The framers of this amendment wrote it with the intention of citizenship being granted only to individuals whose parents were subject to the complete jurisdiction of the United States.
Individuals born in the U.S. to illegal immigrant parents should not be granted birthright citizenship, as their parents are subject to the jurisdiction of the country from which they came— not the United States, as they do not hold some type of legal status in this country. Therefore, universal birthright citizenship is a huge misinterpretation of the 14th amendment.
The 14th Amendment
This Amendment was passed to overturn the horribly decided Supreme Court decision Dred Scott v. Sandford which essentially stated that black individuals in America, free or not, could not be citizens and have no legal standing to sue in federal court. The framers of the 14th amendment knew that black Americans were lawful residents and citizens, as they were subject to the complete jurisdiction of the United States.
The legal standard for being subject to complete U.S. jurisdiction means that an individual cannot be “subject to any foreign power”. This completely disqualifies any children born to illegal immigrant parents from being lawful United States citizens.
The Misuse of U.S. v. Wong Kim Ark
Some in favor of birthright citizenship point out the Supreme Court decision United States v. Wong Kim Ark, but the decision only states that U.S. born children of lawful permanent resident aliens are U.S. citizens— again disqualifying the idea of illegal immigrant children being lawful citizens.
If birthright citizenship was intended for people who were not subject to complete U.S. jurisdiction, why would we need to pass a separate law in 1924 granting Native Americans citizenship? The Supreme Court decision Elk v. Wilkins denied a Native American citizenship as he “owed immediate allegiance to [his tribe]”— not to the U.S.
Native Americans were all obviously born in the United States, but since the sovereignty of their tribes were recognized, they were not subject to the complete jurisdiction of the U.S. — again further disqualifying the idea that anyone simply born in America deserves citizenship.
What Federal Immigration Law States
U.S. immigration law (8 U.S.C. § 1401) simply restates the 14th amendment, citing the “subject to the jurisdiction thereof” clause. This means President Trump can legally and constitutionally sign an executive order directing executive agencies to issue passports and visas in accordance with the actual law, not their incorrect interpretation of the law. U.S. agencies have acted unconstitutionally by granting legal status and citizenship to individuals whose parents were illegal and/or not subject to the jurisdiction of the United States.
Moreover, our current system is being exploited as it pertains to birthright citizenship. There are around 300,000 children born every year to illegal immigrant parents in this country, costing United States taxpayers $2.4 billion annually.
The Trump administration is completely correct on this issue. But with current backlash, this issue will most likely make its way to the Supreme Court for final interpretation.
The views expressed in this article are the author's own.