Anchor Babies Aweigh Augusto Zimmermann & Gabriël Moens
https://quadrant.org.au/news-opinions/america/anchor-babies-aweigh/
In a recent article published in Quadrant and entitled Trump’s Authoritarian Arrogance, Roger Partridge contends that the recent actions of the American President comprise an ‘unprecedented assault on constitutional government.’ He then accuses Donald Trump of ‘systematic dismantling of checks on presidential power.’ He also claims that his actions ‘reveal a leader rapidly consolidating personal control while declaring himself above the law.’[1]
To partially justify his claims Partridge provides the example of Trump’s Executive Order 14156, signed on January 20, 2025, on Protecting the Meaning and Value of American Citizenship. This order, aimed at denying the granting of citizenship to the children of parents who are either in the U.S. illegally or on temporary visas, stipulates ‘it is the policy of the United States that no department or agency … shall issue documents recognizing United States citizenship’ to these children. It further tasks ‘The heads of all executive departments and agencies’ with the issuing of ‘public guidance within 30 days of the date of this order regarding this order’s implementation with respect to their operations and activities.’[2] Accordingly, the Order is unlikely to be applied retrospectively because it does not propose the withdrawal of citizenship of those who have already become American citizens.
However, according to Partridge,
[Trump’s] declaration of a “border invasion” to suspend asylum rights exemplifies this overreach. Rather than work with Congress to reform immigration law, Trump simply decreed that America’s legal obligations to asylum seekers no longer apply. This is not normal policy implementation. It is rule by executive fiat.
The US, along with nearly every country in North, Central and South America, adopts the jus soli or “right of the soil” principle of citizenship. Jus soli is reminiscent of feudalism, where the socio-political organisation linked people and goods to the land. Today, it is justified by the need to incorporate the children of immigrants in the State where their parents legally arrived, with a clear intention to work and to participate in the country’s economic and social development.
The US and Canada are the only two “developed” countries, as defined by the International Monetary Fund, that still have unrestricted birthright citizenship laws. However, apart from the US, no country that adopts the ius soli principle has been automatically providing citizenship to the children of illegal immigrants. Nevertheless, Partridge postulates that the 1898 case of United States v. Wong Kim Ark, offers a precedent for such granting of citizenship to the children of illegal immigrants.[3]
Wong Kim Ark endeavours to interpret the first paragraph of the 14th Amendment to the United States Constitution according to which “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.” According to Partridge,
In the 1898 Wong Ark Case, the Court held that a child born to Chinese parents was a citizen despite laws at the time barring Chinese immigration. The Court emphasised that “subject to the jurisdiction” simply meant subject to U.S. laws – a standard clearly met by children born to undocumented parents.
Mr Ark was a 24-year-old born in the United States of legal Chinese immigrants, but denied re-entry when he returned from a visit to China. Because he was born in America, he successfully argued that his parents’ immigration status was compatible with the 14th Amendment. In its judgment, a 6-2 decision, Mr Justice Gray, writing for the majority of the Supreme Court, stated:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition, “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words … the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which … by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.[4]
The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory … The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States[5].
The 14th Amendment, adopted in 1868 after the Civil War, purported to implement the principle of equality of all different races. In his judgment, Justice Gray, referring to a decision of the Supreme Court of New Jersey, confirms that this was the original intent of the constitutional drafter. Specifically, he states that ‘The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the rights of citizenship.’[6] As such, Wong Kim Ark overturned previous Supreme Court decisions, like the infamous 1857 judgment in Dred Scott v. Sandford that found African Americans could not be U.S. citizens.[7] The 14th Amendment sought to repudiate this ‘shameful decision’.[8] Accordingly, the first sentence of the 14th Amendment to the U.S. Constitution establishes the principle of “birthright citizenship”:
We contend that the 14th Amendment should be interpreted by the intention of the legislator. In constitutional law, this is called ‘originalism’, also known as ‘intentionalism’ or ‘original intent’. It is an interpretative method by which judges must have a special regard for the drafter’s intent.
When it comes to interpreting any provision of the Constitution, the originalist approach requires the courts to consider not only the meaning of the words but also the purpose behind the enactment of the legislation. At the core, originalists believe that the meaning of the law must be locked in at the time of enactment. This meaning must ‘not change with changing social values, or with the shifting view of the point-of-application interpreter, or due to newly perceived moral truths by judges or legal academics’.[9] In his judgment, Justice Gray, writing for the majority in Wong Kim Ark, also confirms that the Constitution and, hence, the 14th Amendment, ‘must be interpreted in the light of … the principles and history of which were familiarly known to the framers of the Constitution’.[10]
This understanding of the 14th Amendment leads to a more balanced and effective approach to resolving absurdity, ambiguity, or inconsistency. As a consequence, the intent of the drafter of the 14th Amendment must be respected and should inform any discussion of President Trump’s Executive Order.
The intention of the Executive Order was not to reward unlawful behaviour, thus providing citizenship to the children of illegal immigrants. Accordingly, reliance on the Wong Kim Ark judgment to declare the Executive Order unconstitutional is problematic because that case concerned Chinese immigrants who were legally in the United States and had their ‘permanent domicil and residence in the United States, and [were] there carrying on business.’[11] Hence, Wong Kim Ark does not provide constitutional authority for the proposition that people born in the United States of illegal immigrants are citizens.
Faithful to this approach, the primary purpose of President Trump’s Executive Order was not to deny citizenship to the children of legal immigrants, but instead to provide an effective way to highlight the anomalous consequences of allowing the 14th Amendment to be misused for illegal conduct. After all, it is often stated that a fundamental tenet of the common law is precisely that nobody should profit from their own wrong.
Surely the tenet must apply, inter alia, to pregnant women illegally crossing the border to give birth to so-called “anchor babies” on American soil. Nevertheless, immigration experts now acknowledge that the Amendment’s provision has become a ‘magnet for illegal immigration’ and that it encourages pregnant women to illegally cross the border, an act that has also been called ‘birth tourism’.[12] According to Pew Research, about 1.2 million children were born to illegal immigrant parents in the United States in 2022, the latest year that data is available.
Can President Trump legally resolve this dreadful problem? Of course, a constitutional amendment could undoubtedly resolve the problem, but that would require a two-thirds vote in both the House of Representatives and the Senate and approval by three quarters of US states. Of immediate concern is the question whether Trump’s Executive Order can withstand a challenge to the constitutionality of the Order.
Surely, the courts will decide the legality of President Trump’s Executive Order. It can be expected that the constitutionality of the Executive Order will be vigorously disputed. Twenty-two states, along with the city of San Francisco and the District of Columbia, have sued the federal government and challenged the constitutionality of the Executive Order.[13] Furthermore, a federal judge in Seattle has already issued a temporary restraining order to prevent the implementation of Trump’s Executive Order on Protecting the Meaning and Value of American Citizenship. District Judge John Coughenour said in his order that the Executive Order ‘is blatantly unconstitutional’.[14]
In our opinion, Coughenour’s decision constitutes an instance of ‘judicial activism’. It does so because such decision ignores the spirit and letter of the relevant constitutional provision. As such, it is a form of judicial review that seeks to ‘control or influence … political or administrative institutions.[15]
In this context, Vice-President JD Vance has warned the federal judiciary that ‘Judges aren’t allowed to control the executive branch’s legitimate power’.[16] Although Vance’s opponents may interpret his statement as condoning the abrogation of the judiciary’s review power, the President ought to have the executive ability bestowed on him by the Constitution to vigorously pursue his promised agenda, especially if its exercise has been signposted during the election campaign.
Indeed, judicial review may be illegitimate and amount to ‘judicial activism’ in circumstances where judges fail to examine the spirit and purpose of the relevant constitutional provision, thereby effectively thwarting the President’s agenda. Ideological objections masquerading as constitutional doctrine and casuistic overreach should not displace the constitutionally authorised executive power of the President. So, whilst the courts have the authority to judicially review decisions made by the Executive, this review should not rise to the level of judicial activism, which effectively usurps or curtails the power of the Executive.
The executive power of the President of the United States extends to prevent the entry of non-citizens. Such a power is central to the sovereignty of the country. Accordingly, the current legislation in the United States does not abrogate the authority of the executive power to prevent entry into the country of non-citizens. President Trump is perfectly allowed to order employees of federal agencies to interpret ‘citizenship’ more narrowly – agents with the U.S. Immigration and Customs Enforcement, for example.
It is interesting to note that, in an interview with NBC’s Meet the Press, Trump said he thought the children of illegal immigrants should be deported with their parents – even if they were born in the United States. ‘I don’t want to be breaking up families,’ Trump said last December. ‘So the only way you don’t break up the family is you keep them together and you have to send them all back.’[17]
This is a perfectly valid concern. Whereas no child should benefit from the crimes of their parents, similarly no child should be taken away from their parents. And yet, keeping the child on U.S. soil as a citizen, in circumstances where their parents would be eligible for deportation as illegal immigrants, would constitute a serious violation of the child’s rights to be raised by his or her biological parents.
Above all, no crime should be rewarded, and unauthorised immigration is a crime under U.S. migration law. Birthright citizenship, introduced by the 14th Amendment in 1868, was intended to be a transformative policy designed to address the injustices of slavery, not to benefit illegal immigration. Clearly, the intention of the constitutional legislator was never to reward illegal behaviour by unlawful non-citizens. Trump’s Executive Order, therefore, is constitutionally valid because, from an originalist perspective, it does not violate the spirit and purpose of the 14th Amendment to the U.S. Constitution.
Hence, Roger Partridge’s confident assertion that the recent actions of the American President, including the adoption of Executive Order 14156, comprise an “unprecedented assault on constitutional government” is an example of hyperbole and academic overreach.
Augusto Zimmermann PhD, LLB, LLM is a professor of law and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.
Zimmermann & Moens are the authors of The Unlucky Country (Locke Press, 2024).
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