President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for "Axios on HBO," a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.Axios also gives a pretty good run down of the legal issues:
Why it matters: This would be the most dramatic move yet in Trump's hardline immigration campaign, this time targeting "anchor babies" and "chain migration." And it will set off another stand-off with the courts, as Trump’s power to do this through executive action is debatable to say the least.
The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:Amendment XIV - Section 1
Be smart: Few immigration and constitutional scholars believe it is within the president's power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.
- "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."
Michael Anton, a former national security official in the Trump administration, recently took up this argument in the Washington Post.
- But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.
- John Eastman, a constitutional scholar and director of Chapman University's Center for Constitutional Jurisprudence, told "Axios on HBO" that the Constitution has been misapplied over the past 40 or so years. He says the line "subject to the jurisdiction thereof" originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.
Between the lines: Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants, Eastman said.
- Anton said that Trump could, via executive order, "specify to federal agencies that the children of noncitizens are not citizens" simply because they were born on U.S. soil. (It’s not yet clear whether Trump will take this maximalist argument, though his previous rhetoric suggests there’s a good chance.)
- But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be "unconstitutional."
The bottom line: If Trump follows through on the executive order, "the courts would have to weigh in in a way they haven't," Eastman said.
- Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call "anchor babies" — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.
- The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.So, I suppose, the issue comes down to the interpretation of "subject to the jurisdiction thereof." Are illegal aliens subject to the jurisdiction of the United States? Sure, in the sense that we can deport them (removing them from our jurisdiction), arrest them, try them and punish them if they commit crimes, feed them if they're hungry, and put their kids to school.
But, dammit, we didn't chose them! They chose to violate our laws to come here and bear their children, which then become our collective responsibility.
Just wait until we try to execute one for murder, and we'll see if their home country bows to our jurisdiction.
Trump may lose this fight in the courts, but it's a fight worth having. Stopping birthright citizenship and anchor babies would be a big step toward forward in the fight against illegal immigration. I don't know how Gorsuch and Kavanaugh will vote, but I'm glad Trump is appointing Supreme Court justices and not Hillary.
Update: This fine video courtesy of Hot Air (and C-Span)