RUTHFULLY YOURS

https://amgreatness.com/2018/10/30/birthright

In 1989, an illegal alien being escorted back to the border gave birth in an Immigration and Naturalization Service van. That child was an American, thanks to our granting citizenship to children born on U.S. soil—a generosity that also extends to children born on any one of 15 islands between the Philippines and Hawaii.

Our promiscuity with citizenship, however “generous” it may seem, effaces the salience of an institution central to the concept of nationhood. That is doubtless what President Trump had in mind when he told reporters from Axios that he intends to sign an executive order that would put a stop to America’s birthright citizenship policy.

The United States and Canada are the only two “developed” countries that retain unrestricted birthright citizenship laws. While many Latin American and Caribbean nations also maintain lenient naturalization laws, it is important to understand them in their historical context. Those laws came about not out of a liberal exigency to bestow citizenship onto foreigners, but rather as a mechanism of empire-building designed subdue indigenous populations by growing the number of Europeans in their midst. “The birthright laws in South America have remained due to low immigration numbers,” explains John Skrentny, a sociologist at the University of California, San Diego.

In other words, if Scots-Irish Americans began caravanning to Mexico, demanding jobs and welfare, and driving up crime rates, odds are good that Mexico would turn “nativist” and amend its constitution to decrease the liberality of their naturalization laws. Indeed, every other Western country that has experienced mass immigration has amended or repealed their naturalization laws in response.

The British did so beginning in 1962, responding to the mass migration of Indians, Poles, and Ukrainians. Parliament in 1981 passed the British Nationality Act, which made it “necessary for at least one parent of a United Kingdom-born child to be a British citizen, a British Dependent Territories citizen or ‘settled’ in the United Kingdom or a colony (a permanent resident).”

Similarly, the French responded to mass migration of Muslim North African immigrants by changing the law to require French-born children of immigrants to apply for citizenship before their 18th birthday. The law has since been eased somewhat thanks to liberal policymakers, but the French still restrict citizenship to children of foreign parents who, at the age of 18, have lived in France for five of the previous seven years.

https://www.nationalreview.com/corner/ending-birthright-citizenship-donald-trumps-immigration-plan/

According to Axios, President Trump is gearing up to sign an executive order that would, in their words, “remove the right to citizenship for babies of non-citizens born on U.S. soil.” There is some ambiguity in this formulation. Will the executive order in question limit birthright citizenship to the children of U.S. citizens, or will it extend citizenship to the children of lawful permanent residents, as in the case of most market democracies that have revised their birthright citizenship rules in recent decades? It is not clear from the video clip provided by Axios on HBO.

In truth, Trump’s response to reporter Jonathan Swan’s question seems rather off the cuff. At first, the president explains that while he once thought bringing an end to automatic birthright citizenship — presumably for the children of any class of non-citizens born in the U.S., whether legally present or otherwise — would require a constitutional amendment, he has since been persuaded that a statute would do, or even an executive order. Pressed by Swan as to whether such an executive order was in process of being drafted, Trump confidently replied that “it’s in the process, it’ll happen.” Will it happen, though? I’m skeptical.

First, I should stipulate that I have in the past argued for an amnesty for the long-settled unauthorized-immigrant population that would be accompanied by a constitutional amendment that would do two things: (a) grant Congress the authority to revise the rules around automatic birthright citizenship and (b) allow naturalized U.S. citizens who are otherwise eligible to serve as president. I’ve since changed my mind.

Though an amendment along these lines would have a hard time clearing the high hurdles we rightly put in the way of new constitutional amendments, it struck me as a tough-minded but ultimately fair way to address a serious and legitimate concern often raised by critics of an expansive amnesty: that such an amnesty would encourage further unauthorized inflows, future unauthorized immigrants would form families in the U.S. (including native-born citizen children), and these mixed-status households have long been among the most sympathetic cases, as most Americans are, for good reason, reluctant to divide families. If mixed-status households are a barrier to stringent enforcement, revising the rules around automatic birthright citizenship seemed like a legitimate solution — indeed, a solution that has in the past appealed to partisans of more open borders.

https://www.nationalreview.com/corner/donald-trump-end-birthright-citizenship-by-executive-order/

On substance, I believe President Trump is right on birthright citizenship — the 14th Amendment does not require it. I do not believe, however, that the president may change the interpretation of the 14th Amendment, which has been in effect for decades, by executive order, as he is reportedly contemplating.

My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “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.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.

I won’t rehash the arguments on both sides. With due respect to our friend Dan McLaughlin (see here), I think Professor Eastman has the better of the argument. As I have observed before, and as we editorialized when Donald Trump was a candidate (here), this is a very charged issue, and it is entirely foreseeable that the Supreme Court (to say nothing of the lower federal courts teeming with Obama appointees) would construe the term jurisdiction differently from what it meant when the 14th Amendment was ratified.

For today, the more narrow question is: Assuming arguendo that the 14th Amendment does not require birthright citizenship, is our practice of conferring it merely an executive policy that the president has the power to change by executive order?

I don’t think so.