President Trump signed an executive order last week changing the policy of providing birthright citizenship to babies born on U.S. soil to illegal alien parents and those whose parents are here on temporary visas. These babies are popularly referred to as "anchor babies".
It does not apply to babies born to immigrants who are lawful permanent residents.
Is is also important to note that the Trump order only applies to future anchor babies. It does not attempt to strip citizenship from past anchor babies.
This is an issue I wrote about in these pages ten years ago entitled, "An Anchor Around Our Necks" detailing the compounding costs of birthright citizenship.
This was before Donald Trump even started making headlines about the issue when he first ran for President in 2016.
President Trump's executive order has already been challenged in federal court by 22 Democrat-led states and several civil rights organizations. This undoubtedly is no surprise to Trump. However, this now sets the stage for this important issue to be taken to the U.S. Supreme Court which has never been directly confronted on the issue.
Let's take a deeper look at the issue of birthright citizenship.
The United States is decidedly in a distinct minority in providing citizenship this way. Among developed countries, Canada is the only other country in the world to provide birthright citizenship.
In fact, the trend in recent years has been to eliminate birthright citizenship. Ireland was the last European Union country to eliminate it in 2005. France did away with it in 1993. The UK in 1983.
Australia (1986) and New Zealand (2006) are other countries that eliminated birthright citizenship in recent years.
The common narrative repeated by many is that birthright citizen is a fundamental right for anyone born in the United States provided by the 14th Amendment to the U.S. Constitution and therefore can only be eliminated by constitutional amendment. However, as stated above, this question has never been directly decided by the Supreme Court.
What does the 14th Amendment actually say which was enacted originally to insure that slaves would be recognized as citizens?
Amendment XIV, Section 1, Clause 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." (emphasis added)
That seems fairly clear except for the words I underlined above..."and subject to the jurisdiction thereof."
Is a child born in the United States to parents who are illegal immigrants "subject to the jurisdiction of the United States" when those parents are unlawfully present in our country?
This is the foundational argument behind Trump's executive order that the 14th Amendment does not automatically confer birthright citizenship to children of illegal immigrants. These individuals are not subject to the jurisdiction of the United States as they are citizens of other countries.
Even if one believes that Trump cannot do this through executive order many believe that Congress has the right to define what "subject to the jurisdiction thereof" means. It has already been accepted that this means that children born to foreign diplomats do not gain U.S. birthright citizenship nor do members of certain Indian tribes.
I would further argue that the very actions of the federal government in not enforcing the immigration laws means that illegal immigrants that are here have effectively not been "subject to the jurisdiction of the United States" by the consistent failure of our government to enforce the country's jurisdictional borders.
How can an illegal immigrant be considered to be subject to the jurisdiction of our country if they are here illegally but our government is doing nothing about it?
The Center for Immigration Studies did a study in 2018 that estimated 300,000 children were born in the United States that year to mothers who are illegal immigrants. To put that in perspective, that is about 1 out of every 12 births in this country!
It is hard to believe that the numbers are not higher today especially considering the surge of illegals into the country over the last four years.
Aa result of the prevailing interpretation of the 14th Amendment to the U.S. Constitution each of these children are considered to be United States citizens.
500,000 additional children were born to legal immigrants. It should be noted that children born to legal immigrants would still be considered U.S. citizens under the Trump order in that they "are subject to the jurisdiction" of the United States.
Taken together, births to immigrants made up about 20% of all U.S. births in 2018 according to that study.
This overall estimate seems still accurate today in that the foreign-born population is now 15.6% of the U.S population (a higher percentage that it has ever been). In that this immigrant population is younger and has generally higher fertility rates than the native population it follows that about 20% of all births in any year are to immigrants.
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| Source: https://cis.org/Report/ForeignBorn-Population-Grew-51-Million-Last-Two-Years |
U.S.-born children of illegal aliens are also eligible to sponsor the immigration of family members once they come of age. At 18, an “anchor baby” can sponsor an overseas spouse and unmarried children of his own. At full majority age at 21, he or she can sponsor parents and siblings under our "chain migration" laws.
Can you imagine anyone who voted for the 14th Amendment in 1866 at the federal or state level thinking that we would be conferring citizenship to this many as a result of this provision?
Or to even consider the fact that people could transport themselves within a day from any point in the world to the United States?
Michael Anton of the Claremont Institute wrote what I have found to be the best overall argument for why citizenship birthright should be ended. He has extensively researched the legislative history behind the 14th Amendment deliberations in 1866.
It seems that those who wrote and voted on the 14th Amendment had no intention that they would be conferring birthright citizenship on anyone whose parents were unlawfully in the United States.
It is also not debatable that the American people were never brought into the conversation as Anton observes.
The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.
What is in the legislative history to support the view that birthright citizenship was never intended by the 14th Amendment?
Senator Jacob Howard was one of the authors of the 14th Amendment and specifically offered the amendment language that added the words, "and subject to the jurisdiction thereof". This is his explanation of the reasons for that language and its import.
This suggests that to acquire birthright citizenship a person has to be born within the limits of the United States and be fully subject to the jurisdiction of the United States.
This was made even clearer by the clarifying comment of Senator Johnson of Maryland during the debate about the 14th Amendment.
Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. (emphasis added)
Of course, the slaves that were the primary focus of the 14th Amendment met both of these requirements. They had been born in the United States and they were not subject to the sovereign authority of any other country.
In my mind the most persuasive argument that the 14th Amendment does not confer birthright citizenship is understanding the reasons that the citizenship clause was included therein to begin with.
Earlier in 1866 Congress had passed into law "The Civil Rights Act of 1866" in order to define citizenship and affirm that all citizens are equally protected under the law. Of course, this was primarily intended to make clear that slaves were citizens and had all the rights of any other citizens.
However, Congress became concerned that the law could be overturned sometime in the future or that it could be declared unconstitutional on the basis that there was no authority for Congress to confer particular rights to all citizens rather just outlawing discrimination.
Therefore, the leading proponents of the Civil Rights Act of 1866 proposed the 14th Amendment with the intention of eliminating all doubts about the law's constitutionality.
As a result, the Citizenship Clause in the Fourteenth Amendment parallels the citizenship language in the Civil Rights Act of 1866, and the Equal Protection Clause parallels nondiscrimination language in the 1866 Act.
Of note, Representative John Bingham of Ohio, who is sometimes referred to as the "Father of the 14th Amendment", stated that the Citizenship Clause in the 1866 Civil Rights Act was meant to require that someone not only be born in the United States but also not owe allegiance to any foreign sovereign.
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..
I also doubt that Senators Howard, Johnson and Representative Bingham or others at that time could have envisioned a time in which Chinese, Russian, Mexican or Honduran women would come to the United States and have a child that would be a U.S. citizen.
That child could then as a U.S. citizen at age 21 sponsor their parents and siblings to become U.S. citizens under our "chain migration" policies.
It sets in motion a compounding effect that increases exponentially over time.
Under the United States’ current immigration system, most migrants receive a green card simply because they are the relative of an earlier migrant, not because of what they can contribute to American society.
This creates a “chain” of immigrants who can then sponsor other immigrants in the same manner. These, in turn, may sponsor more immigrants, and so on.
As more and more immigrants are admitted to the United States, the population eligible to sponsor their relatives for green cards increases exponentially. This means that every time one immigrant is admitted, the door is opened to many more.
As long as birthright citizenship is continued it will be a magnet for illegal immigration. It incentivizes people from all over the world to break our laws to come here. The longer the practice continues the more illegal immigration we are likely to get.
If we are ever to get meaningful immigration reform it is necessary to cease providing birthright citizenship or it will undermine almost anything else we do.
Trump deserves credit for having the courage and personal constitution to be willing to elevate this issue to public debate. It is an issue that deserves public scrutiny and discussion. Whether it goes anywhere in the near term will likely be determined by the United State Supreme Court.
If the Supreme Court is unwilling to end the policy, it may require a constitutional amendment which will be next to impossible to achieve in the short term considering the current political divide in the country.
However, the fact remains that until birthright citizenship is terminated, a wall is built to staunch the flow of illegals, and strict enforcement policies are adhered to, it will continue to be difficult to reach the goal of the sensible and sustainable immigration reform the United States desperately needs.
Scott: Mark Levin has made this same argument.
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