Roger Niello

The Debate over Birthright Citizenship

President Donald Trump has consistently opposed birthright citizenship and he declared recently that he can alter that by an Executive Order. I disagree and believe he should leave that to the legislative process. But there is another problem with his wish: any review of birthright citizenship should only be done in connection with a comprehensive reform of our immigration policies, for which the President has also consistently spoken.

It is almost unanimously held that our immigration laws are broken and the security of our borders has been severely lacking. Unfortunately, it appears that too many of our politicians seem happy to allow this dysfunction to continue because it provides fodder to rally fear and anger among the hard right and hard left bases.

There are, however, members of Congress, both Democrats and Republicans, who believe this issue desperately needs to be addressed. I am hopeful, and I urge, that those level heads put their bi-partisan heads together and craft sensible and sustainable immigration reforms. This would include, of course, what to do about birthright citizenship and, if changed from current practice, how to do it.

So this brings me back to the issue President Trump recently raised. I have read a few opinion pieces about this, covering both sides of the “whether” and a few perspectives on the “how”.

Regarding the “whether”, I think my friend and former California Assembly colleague Chuck DeVore stated it well in his recent column for Forbes Magazine. “The President’s concerns over birthright citizenship, from birth tourism to children of illegal immigrants, is part of a larger policy discussion that ought to be had.”

Now to the “how”. The debate is centered on the phrase “subject to the jurisdiction thereof” in the 14th Amendment sentence “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” There is no question about whether an alien, legal or illegal, is subject to our jurisdiction, i.e., subject to our laws. The debate splits on whether that means “allegiance”, the aliens being still citizens of and thus allegiant to their native country. There are a couple of conflicting historical notes here.

First, the Civil Rights Act of 1866, passed just two years before the 14th Amendment was ratified, granted citizenship to “all persons born in the United States and not subject to any foreign power.” The 14th Amendment, drafted to clear up the citizenship of newly freed slaves due to conflict with the earlier Dred Scott Supreme Court decision (that ruled slaves could not be citizens), used the slightly different language detailed above. One side of this debate maintains that the different language was deliberate and intended to eliminate the burden of “allegiance”. The other side argues that some of the authors of the 14th Amendment were also involved in drafting the Civil Rights Act and thus intended the same thing, i.e., birthright citizenship was subject to the “allegiance” of the parent(s).

The interpretation of those conflicting points of view really depends upon provable legislative intent which presents the second conflicting historical note. Statements from the amendment debate can be cited here but that doesn’t clear things up much. Supporting President Trump’s side is a statement of Sen. Lyman Trumbull, a co-author of the 14th Amendment, who said being “subject to the complete jurisdiction of the United States” meant “not owing allegiance to anybody else”.

However, other statements during the debate of the Amendment support the argument of the birthright mandate. For example, Sen. Edgar Cowan, objecting to a blanket interpretation, asked “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?” To which Sen. John Conness of California answered that the children of Chinese aliens “shall be citizens” and he was “entirely ready to accept the provision proposed in the constitutional amendment.”

This position is supported by the Supreme Court case of U.S. v. Wong Kim Ark (1898) wherein the Court upheld the citizenship of a child born in San Francisco of Chinese parents barred from citizenship by the Chinese Exclusion Act. According to the Court “the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” However, even this doesn’t clearly reject President Trump’s position since Wong Kim Ark’s parents were lawful resident aliens. The decision did not address what the case would have been had Wong Kim Ark’s parents been illegal immigrants.

So is birthright citizenship a clear constitutional mandate? Or was it originally intended to apply only to newly freed slaves and not applicable to children of non-citizen residents, legal or illegal? Take your pick and an effective case can be made either way. In any case, though, it seems hard to maintain that confusion over what is essentially legislative intent can be cleared up by the constitutionally separate Chief Executive through an Executive Order. It would seem more appropriate for legislators to clear up their institution’s intent through a legislative act, as Sen. Lindsey Graham has proposed. And the 14th Amendment itself provides that avenue.

Section 5 of the amendment gives Congress the power “to enforce, by appropriate legislation, the provisions of this article.” So as part of legislation that would reform and fix our immigration system, and, as I stated, only as part of that fix, the meaning of “subject to the jurisdiction thereof” can be clarified. It should be part of a separate bill of its own, though, since it would likely be subject to a legal challenge and that should not be allowed to hold up any progress made to the rest of the immigration reform effort.

With apology to the reader for the length of this piece please allow me to make it a little longer to give credit to my sources. I thank the Wall Street Journal for columns by Josh Blackman (Birthright Citizenship is a Constitutional Mandate, Nov. 2, 2018) and Matthew Spalding (The Case Against Birthright Citizenship, Nov. 1, 2018) as well as the previously cited Forbes Magazine column by Chuck DeVore (Can Trump End Birthright Citizenship, Oct. 30, 2018).

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