Automatic Birthright Citizenship

[Randy W]

from the Sixth Tone

 

Trump’s Citizenship Threat Worries China’s Moms-to-Be

Agencies that help expectant mothers give birth abroad have seen an uptick in interest since the American president’s latest bombshell.

 

 

Agencies that help Chinese women give birth in the U.S. have seen an influx of potential customers in the 24 hours since U.S. President Donald Trump told Axios that he plans to end birthright citizenship for children of noncitizens born on American soil.

 

. . .

 

But not all mothers are having their children abroad legally and honestly. “Finding Mr. Right” — a romantic comedy about a woman who travels from Beijing to Seattle to give birth at an unlicensed maternity center — was one of China’s most popular films in 2013, and has inspired countless copycats. Liu Jing, who gave birth to her son in Shanghai, told Sixth Tone that she considered having a child in the U.S. after one of her friends did so. Liu said her friend — who declined Sixth Tone’s interview request — hopes that when her child turns 18, he will choose American over Chinese citizenship so that she and her husband can become naturalized citizens themselves one day.

But Liu doesn’t agree with her friend’s underhanded methods. “She spent her life savings to give birth in the United States, and they had to hide in a maternity hotel in some small town on the East Coast for fear of being found out,” Liu explained. “I didn’t want to take that risk.”

Constitutional scholars agree: Any child born in the U.S. is automatically a citizen. Any action by President Donald J. Trump would face legal challenges.

- NY Times

"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."

from USAToday:

But in a 1982 decision, the Supreme Court ruled that even if a person enters the country illegally, that person is within U.S. jurisdiction and "is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction – either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States – he is entitled to the equal protection of the laws that a State may choose to establish."

[HotBaozi]

The 14th amendment was written in the 1860s for victims of slavery, not for foreigners. In the end, it must be argued in the Supreme Court, but most legal scholars agree that birthright citizenship does not apply to foreigners who entered the US and gave birth.

 

Can Trump End Birthright Citizenship?

Chuck DeVoreContributor

PolicyTexas Public Policy Foundation VP and former California legislator

 

The U.S. Constitution

In an interview with Axios on HBO, President Donald Trump discussed his plans to discontinue the practice of automatically granting U.S. citizenship to all babies born on U.S. soil.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” the President said. “You can definitely do it with an Act of Congress,” he elaborated, “But now they’re saying I can do it just with an executive order.”

The President’s concerns over birthright citizenship, from birth tourism to the children of illegal immigrants, is part of a larger policy discussion that ought to be had. Does America benefit from the current practice of birthright citizenship? If the practice is curtailed or ended, do we risk the additional marginalization of immigrants and their children as some assert has been the case in Europe?

Beyond the proposed policy’s merits or shortcomings, there is a more fundamental Constitutional question: can limiting birthright citizenship even be done, short of amending the Constitution?

Critics say the President can’t touch birthright citizenship.

As the news broke, Bill Kristol, editor-at-large of The Weekly Standard, panned the President’s idea in a tweet:

th Amendment and its Citizenship Clause dates to 1868, not 1776, and that the clause can be (and has been) clarified by statute, something Section 5 of the amendment specifically makes an allowance for.

 

Wong Kim Ark, upholding birthright citizenship, seems to have been correctly decided. It’s not crazy to ask Congress to test this by legislation. But claiming a constitutionally-based policy that’s existed for our nation’s entire history can be changed by executive order is nuts."

Harvard constitutional law Professor Laurence Tribe added his thoughts in a tweet:However, Senator Lindsey Graham weighed in with the President:

 

If the 14th Amendment’s guarantee of birthright citizenship could be wiped out with the stroke of Trump’s pen, the whole U.S. Constitution could be erased that way. There’s no limit to that dictatorial claim over all our rights."As a former lawmaker, I’m more interested in the intent of the drafters of the 14th Amendment to the Constitution. What did they say about it when they introduced it in Congress?

 

Finally, a president willing to take on this absurd policy of birthright citizenship… In addition, I plan to introduce legislation along the same lines as the proposed executive order from President (Trump)."

First of all, it is important to view the 14th Amendment in context. It was forwarded for ratification after the 13th Amendment, which ended slavery at the conclusion of the Civil War in 1865. But, recently freed slaves were not necessarily citizens as their citizenship status was abridged by the Supreme Court’s infamous Dred Scott ruling in 1857. The 14th Amendment was therefore needed to elevate former slaves to the status of full-fledged U.S. citizens.

The 14th Amendment, Section 1 begins:Sen. Jacob Howard was the author of the 14th Amendment’s Citizenship Clause. On the floor of the U.S. Senate in 1866, Sen. Howard clarified the meaning of the Citizenship Clause:

 

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…"Clearly, the clause’s phrase “subject to the jurisdiction thereof” means something. The Constitution’s words cannot be accepted or ignored to suit mere political desires.

 

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

The case of Wong Kim Ark, cited by Bill Kristol, is often used by defenders of a broad interpretation of the 14th Amendment’s Citizenship Clause. This Supreme Court case was decided 30 years after the 14th Amendment’s ratification by the states. In it, the majority held that Wong Kim Ark’s parents were lawful, permanent residents who were “domiciled” in the U.S. at the time of his birth in San Francisco in 1873. Wong Kim Ark subsequently exited the U.S. and was denied re-entry under the Chinese Exclusion Act, signed into law in 1882, prohibiting all immigration of Chinese laborers. He sued, arguing that, as a U.S. citizen, the Chinese Exclusion Act didn’t apply to him. The Court found that his parents, while Chinese citizens owing allegiance to the Emperor of China, were in fact permanent residents of the U.S.—they weren’t in the nation illegally and they weren’t here on a temporary basis. Thus, Wong Kim Ark was a U.S. citizen.

Complicating matters is the fact that at the time of the 14th Amendment, most Native Americans born on reservations within the borders of the U.S. were not granted citizenship as they owed allegiance to their tribe. Individual tribal members could apply for citizenship or be considered as citizens if they were taxed and lived off a reservation. It wasn’t until Congress passed the Indian Citizenship Act of 1924, signed into law by President Coolidge, that the entire Native population became citizens—some 92% were not at the time.

The fact that a statute was needed to confer citizenship on a vast class of people born in U.S. territory 26 years after the Wong Kim Ark decision appears to throw some doubt on the argument that the 14th Amendment grants automatic citizenship to all born on U.S. soil.

These facts, combined with the fact that the U.S. Supreme Court has never directly ruled on the issue of whether those born in the U.S. to parents not here permanently or legally, makes for an opening for President Trump’s proposed executive order on the matter as well as for statutory clarification per Sen. Graham’s tweet.

Regarding an executive order, might there be guidance given to the executive branch regarding, for example, the citizenship status of children born to so-called “birth tourists?” That is, mothers, late in their term, who fly into the U.S. specifically to give birth to U.S. citizens, conferring upon the children the ability to avoid mandatory military conscription in nations such as South Korea, China, and Turkey, while giving their parents an advantage in future immigration via so-called “chain migration.”

Similarly, a statute passed by Congress and signed by a president could seek to define “subject to the jurisdiction thereof.”

In either case, litigation is almost certain to ensue and the U.S. Supreme Court would get an opportunity to directly rule on what exactly “subject to the jurisdiction thereof” means.

Both an executive order from President Trump and a statute passed by Congress and signed by the President, would be quickly brought before the federal court system, once again showing that our constitutional republic was built to withstand the passions of the moment.

https://www.forbes.com/sites/gradsoflife/2018/11/01/futureproofing-why-this-company-sources-talent-locally-and-why-you-should-too/#5b57742a4cb2

 

https://www.youtube.com/watch?v=F2zQVxtIbcA

[Randy W]

That'll play out in the courts - NOT here on CFL

[Randy W]

from USAToday:

But in a 1982 decision, the Supreme Court ruled that even if a person enters the country illegally, that person is within U.S. jurisdiction and "is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction – either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States – he is entitled to the equal protection of the laws that a State may choose to establish."

 

 

 

The problem facing anyone who wants to come to the U.S. to take advantage of the birthright citizenship, is just how much time do they have to do so? Anywhere from a few days to at least three years if a constitutional amendment is ratified. The uncertainty about whether their plan will work may be enough to cause a LOT of mothers to head elsewhere.

 

The 1982 case was

Plyler v. Doe

 

Texas officials had argued that illegal aliens were not "within the jurisdiction" of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful." The dissenting opinion also rejected this claim, agreeing with the Court that "the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."

 

[HotBaozi]

That'll play out in the courts - NOT here on CFL

 

You posted the political topic as if your opinion was the absolute truth. The truth has always been clear, but because the 14th amendment has been so heavily politicized, it will be played out in the Supreme Court. In the meantime, the president can, and will retroactively if necessary, block ALL those who think they can enter the US illegally with the intention of having a baby and calling it an American citizen. That has never been a part of America. Not now, and won't be EVER.

[Randy W]

There is nothing more to be said here.

 

We can talk about the Chinese mothers - we will NOT be arguing before the Supreme Court here.

Edited November 2, 2018 by Randy W (see edit history)

[Randy W]

I hadn't read it earlier, but Jesse's link above is an EXCELLENT and VERY thorough (and LENGTHY) discussion of both the pro and con sides of birthright citizenship in point-counterpoint fashion

 

lawful, permanent residents who were “domiciled” - actually a discussion of Birthright Citizenship from the Claremont Review of Books

 

By: John C. Eastman, Linda Chavez

 

We’re happy to continue, here, consideration of the points Eastman raised with the help of Linda Chavez. She is chairman of the Center for Equal Opportunity, a conservative think tank devoted to issues of race and ethnicity. Ms. Chavez held several positions during Ronald Reagan’s presidency, including staff director of the U.S. Commission on Civil Rights, and is the author of three books. Dr. John C. Eastman is Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence, and currently serves as the Henry Salvatori Professor of Law & Community Service at Chapman University's Dale E. Fowler School of Law. He is also a Senior Fellow of the Claremont Institute.

 

 

 

This is the article Jesse quoted directly, from Forbes

 

Can Trump End Birthright Citizenship?

 

Feel free to read these articles, but we will NOT be discussing Constitutional issues here.