Why can't Donald Trump revoke birthright citizenship?

  • Recently, there has been a huge debate about revoking birthright citizenship from children born in the US to illegal alien immigrants. I read here that almost all left and right wings of the US political system will likely oppose this revoking birthright citizenship idea. Still, it's not clear to me that: is there anything to fundamentally prevent Trump's administration from revoking birthright citizenship, such as something in the US Constitution, or politicians just not helping Trump to do so because of the recent US political atmosphere? I will be very grateful if someone could explain this to me.

    The link in your question mentions in its second sentence that this _is_ covered in the US Constitution. I don't see any question here that isn't already covered in your linked article, and others on the subject. There are some who debate the commonly held interpretation of that sentence of the constitution, but that is not the same as asserting it is nowhere in the constitution.

    Relevant question on Law.SE

    It is against the 14th amendment of the United States constitution . I am not sure amending this would work . Perhaps something like what other countries do which is in order to report a birth in the country, the parents must be legally in the country.

    @Matt the reasoning you outline usually overlooks the fact that a child cannot petition for a parent's immigration until the child's 21st birthday. Anyone who understands this and gives birth in the US for the purpose of obtaining US citizenship for her child is thinking more about the interests of her child than about claiming citizenship for herself or other family members.

    @phoog Fair point, I'm sure there are some people that have a 21-year vision, and more people that don't. It still provides incentive for people to illegally enter the country, if at least to provide a better future for their child - a noble thing, but an illegal thing. I'm not defending or opposing this - just ensuring that OP has the facts to think for him/herself

    Mary Anne McLeod sounds pretty much like a Scottish name, not an US american one. Would be a funny move of this alien's child to revoke his own birthright.

    @Damon she naturalized in 1942, four years before Trump was born. It still rather smacks of hypocrisy, though, as two of his three wives have also been immigrants (with at least one having had questions raised about her immigration status during her early time in the US). But this isn't exceptional; he hasn't had much to say about his parents in law having become US citizens through the very "chain migration" route he so loves to rail against.

  • 14th Amendment to the US Constitution, Section 1:

    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.

    Amendments amend the U.S. Constitution, so they are a part of the Constitution. Only further amendments can alter the language of other amendments, as seen by the passage of 18th Amendment and subsequent repeal by 21st Amendment. Most argue that, in order to revoke birthright citizenship, you would need to go through the process of amending the Constitution, which doesn't involve the President at all.

    Some in the U.S. try to make the argument based on the phrase "subject to the jurisdiction thereof", and argue that people born in the United States to non-citizen parents aren't "subject to U.S. jurisdiction." Whether that's a valid legal argument is a bit out of scope for this site, but at least one question about it has been asked at Law.SE.

    I've done voted this answer because there isn't a stated intention from trump to amend the constitution that its an EO, but to affect the interpretation.

    @DrunkCynic My intention here is to answer the question asked. If you want to see a different answer to a different question about _Trump's intentions_, I'd suggest asking it so long as you aren't asking anyone to read his mind.

    @JeffLambert The question doesn't ask about amending the constitution, just curtailing birthright citizenship.

    @DrunkCynic Yes, birthright citizenship that has constitutional backing settled in existing case law. The answer as to "why can't he" is because "he would need to amend the Constitution" coupled with "he can't do that." If his _intention_ is to try to create new case law, or if his _intention_ is to simply rally his base before the midterms, only time can tell.

    If you read the article the OP linked, the Supreme Court has defined those who aren't "subject to the jurisdiction thereof": the children of foreign diplomats, or of foreign forces occupying part of the country. Undocumented immigrants clearly are subject to the jurisdiction of the US, as they can be arrested & tried for crimes, exactly as citizens are.

    Is the US v. Wong Kim appropriate here? I will admit that the legality of the Executive order will be argued but it is far from settled law. The flaw of US v. Wong Kim is that his parents were not illegal aliens, they were legal residents, this is different, but again, I am not on the court so that remains an opinion, just like the applicability of US v. Wong is also an opinion. We have a bunch of opinions but no surety. This answer is still wrong because no one knows if it is unconstitutional at this time and saying so does not make it a fact

    @FrankCedeno Wonk Kim Ark can be distinguished from the present case by the status of the parents, but other cases such as Plyler v. Doe suggest that illegal aliens are in fact "subject to the jurisdiction" of the US for the purpose of the citizenship clause, so the distinction is without effect. After all, an illegal alien who commits a crime can be prosecuted. The same is not true of a diplomat or a diplomat's family members. See my answer at [Law.SE].

    @jamesqf That would be the farcical side effect of such an EO: If they aren't subject to our jurisdiction, they can't be deported because they *aren't subject to our laws*

    @phoog, You provide a compelling argument, however the phrasing of the equal protection clause and the naturalization clause is different. The EPC reads "within its jurisdiction" while the NC clause reads "subject to its jurisdiction". I will not say your argument is not compelling, it may well win in court but still, it can be argued that prior case law does not apply. Anyway, it will never be argued that way, I will bet it will be argued that Trump is too racist

    @FrankCedeno the difference in phrasing between the equal protection and citizenship clauses is in fact why I said "suggest" rather than using a stronger word. But I doubt any lawyer would use the racism argument because it's just too tenuous. The religious discrimination argument against the travel ban had a far more substantial basis, but it wasn't all that successful in the end.

    @phoog, I'm not saying this to be hyperbolic, I just think it is interesting, while the anti travel ban argument was about religion, the current times make it more likely that the racism argument will be at the top of minds judging from the media headlines. My interest is a sporting one, not trying to make a statement. Anyone interested in a betting pool?

    This is an excellent answer. Short and to the point but nevertheless quite complete.

    I like this answer, but it is missing a couple of possibilities: 1) The Constitution is interpreted by SCOTUS. This is a body that has been drastically rebalanced recently, including two members who owe their position to this president. Its possible (one hopes unlikely, but possible) they could decide to reinterpret the 14th in a way amenable to the Administration. 2) Enforcement of SCOTUS decisions is left to the Executive branch of whatever body they affect. Its quite possible this president could decide to pull an Andrew Jackson, and refuse to abide by a court decision against him.

    @DrunkCynic - Since birthright citizenship is in the Constitution, curtailing it would require amending the Constitution. But you know this.

    @FrankCedeno - If you read the opinions on that ruling, it's very clear that they only see very specific exceptions, which they explicitly list. "Illegal alien" was not on that list, and certainly illegal aliens are subject to our jurisdiction, otherwise we would not be able to arrest or deport them. That ruling is very clear an applicable to this current claim.

    @PoloHoleSet Birthright citizenship isn't in the constitution. US v Wong Kim Ark was scoped to the children legal residents who were affected by the Chinese Exclusion Act. Through their compliance with immigration law, they would be considered subject to us Jurisdiction. Illegal immigrants are not in compliance with US immigration law, thus are not residents and subject to us jurisdiction as described by the 14th convention. This is why illegal immigrants must be informed of their right to seek legal aid from their Consulate when arrested for a crime?

    @DrunkCynic - No, it was not scoped in that regard, which I actually already covered in my previous comment. The opinion put forward specifically delineated that there were only a few exceptions to birthright citizenship, and put absolutely zero consideration to the legal status of the parents. In fact, it pretty much went the other direction and made it a point to show that the legal status of the parents was largely immaterial to this. There was nothing in the language of the opinion to suggest this was narrow in that way.

    @DrunkCynic - Since the 14th Amendment is part of the Constitution, and it specifically spells it out, your claim that it's not there seem fundamentally flawed.

    Doesn't this conflict with children of diplomats not receiving US citizenship upon birth? Diplomats are subject to US jurisdiction, despite limitations set out in the Vienna Convention.

    @JonathanReez USCIS disagrees that diplomats are subject to US jurisdiction. Also see 8 CFR 101.3(a)(1).

    @PoloHoleSet, there is no equality between jurisdiction and being able to arrest or deport. They are not the same thing. As the writer of the amendment stated in his own words and common sense will tell you, jurisdiction means the relationship between the government and the person, not law enforcement and the person. The argument for anchor babies is the equal protections clause, not the non-sense of there is jurisdiction because law enforcement can arrest and deport. If you follow that argument than the entire world is within the jurisdiction of the US (extradition treaties)

    @FrankCedeno I'm sorry, but I'm skeptical that you can separate the relationship between "government and the person" and "law enforcement and the person," they are one and the same. Law enforcement is a part of the government. Any restriction on government action also applies to law enforcement.

    @DrunkCynic *every* alien is entitled to consular aid when arrested, including tourists, nonimmigrant workers, and green card holders. All of those people are subject to the jurisdiction of the US, as are illegal aliens. If they weren't subject to the jurisdiction of the US, it would not be lawful for the US to arrest them. That is the case with diplomats, and, significantly, their children, who are indeed immune from arrest.

    @FrankCedeno being in a different jurisdiction with which the US has an extradition treaty is not the same as being subject to US jurisdiction. The US cannot in fact arrest such a person; they have to arrange for the person to be arrested by the other jurisdiction. There also has to be a formal hearing in the other jurisdiction's judicial system before the other jurisdiction will release the person into the custody of the US.

    @DrunkCynic - You do understand that law enforcement is a function of government, and derives its powers from government, right? This is a totally imaginary separation that you are inventing here. There is no way that law enforcement has the ability to do anything to anyone unless government has jurisdiction over them. Anyone within the United States is subject to our laws. ***THAT*** is jurisdiction. If they are not subject to our jurisdiction, we have no standing to request or demand that they do anything. The argument for "anchor babies" is that the Fourteenth says they are citizens.

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Content dated before 7/24/2021 11:53 AM