President Trump has recently signaled that he is preparing to sign an executive order that will effectively end birthright citizenship under the 14th Amendment for those who enter the United States illegally.
Of course, this has caused uproar within Democrat circles, ensuring there will be a legal challenge to any executive order the President decides to sign in this regard. Many Democrats, and mainstream media personalities, are claiming that President Trump is “attempting to change the Constitution via executive order,” but that is a blatant distortion of the truth.
The truth of the matter is that the United States Supreme Court has yet to decide on the specificity of who is considered a “citizen,” as outlined by Section 1 of the 14th Amendment. Especially with regard to children of illegal immigrants who are born in the United States.
Congressional Republicans originally wrote the Fourteenth Amendment to address slavery’s influence in distorting American law. In Dred Scott vs Sanford, Chief Justice Roger Taney ruled that slaves, regardless of whether or not they are born in the Untied Stated, can never become American citizens. Because this grave injustice has been adequately addressed through the enactment of the Fourteenth Amendment, we must revisit the Constitution to ensure the intent of our Founders is being honored and whether or not the Fourteenth Amendment is being carried out as the authors intended.
What does Section 1 of the 14th Amendment say?
Amendment XIV (Ratified July 9, 1868)
Section 1. All person 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. 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.
With regard to citizenship, there are two criterion that must be met in order to qualify as a “citizen” under the Fourteenth Amendment. The individual must be born or naturalized in the United States AND they must be subject to the jurisdiction of the state.
Many Democrats are claiming that illegal immigrants are, in fact, subject to the jurisdiction of the state since they’re able to be criminally charged if they are found to have broken the law. For example, if an illegal immigrant commits larceny or some other felony, they are charged and adjudicated accordingly. This is true however, this only applies to criminal misconduct. There are many other civic duties, all of which carry substantial significance, that are also considered jurisdictional. None of which illegal immigrants are subject to.
When someone is accused of breaking the law and is charged with a crime, they are afforded due process which often times includes a trial by jury. If the defendant and their counsel decide to try their case before a jury, that jury must be randomly chosen from the citizens within that court’s jurisdiction. This is how we empanel a “jury of your peers.” Illegal immigrants are not subject to serving jury duty, therefore they are not subject to the jurisdiction of the state. When a jury is empanelled to distinguish the guilt or innocence of an illegal immigrant, they are utilizing resources they do not contribute to.
Income tax is another great example. Illegal immigrants typically work “under the table” which means their income is not subject to federal and state income tax collections. In many ways, they are deliberately evading tax collections. Even though they are physically located in an area that falls under state jurisdiction, they are not subject to paying an income tax to the state, therefore they are not considered subject to the jurisdiction of the state. If they are indeed to be considered “subject to the jurisdiction thereof,” then each of them have quite a bit of back-taxes they will need to pay to the Internal Revenue Service (IRS) in order for their “citizenship” to be justified.
The current modus operandi for any child born within the borders of the United States is to award that child with citizenship, even though the question surrounding whether or not this is legitimate has yet to be concluded. This opens the door for the parents, who initially broke our immigration laws, to take advantage of various welfare programs. This means the parents are benefiting from a program they never paid into, and probably never will. The losers in this situation are the downtrodden American citizens whom look to these programs for assistance, as their privilege to access the welfare program is curtailed due to the inclusion of non-citizens.
For every illegal immigrant parent who gains access to the welfare program, less assistance becomes available for the American citizens for whom these programs were originally established. By allowing illegal immigrant parents to gain access to the welfare programs, we curtail the availability of those programs for American citizens. This is a violation of the Fourteenth Amendment, as Section 1 clearly states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Welfare programs are considered a “privilege” and there is no reason to abridge that privilege on behalf of illegal immigrants whom owe their political allegiance to another country, even if they do birth a child within the United States. The welfare benefits should be afforded to the person considered a “citizen,” which is the child and the child only.
Which brings us to the $60,000 question: should a child born to illegal immigrant parents on US soil be awarded with U.S. citizenship?
These will be choppy waters to navigate, as the past and current methodology has been to award anyone born on US soil with citizenship, regardless of the parents’ immigration status. This also means that decades of precedent is on the side of awarding citizenship to any child born on US soil, regardless of parents’ immigration status. This will be an uphill battle to say the least, but a battle worth having.
In order to overturn decades of precedent, the Trump Administration will require some compelling precedent of their own. Precedent that squarely defines birthright citizenship or the Founder’s intended definition of “subject to the jurisdiction thereof”. The Slaughterhouse Cases adequately serve as such a means. Though the court’s ruling in the Slaughterhouse cases did not address birthright citizenship squarely, they did offer a definition for “subject to the jurisdiction thereof,” which is precisely what we are looking for.
In the Slaughterhouse Cases, the court found that “[t]he phrase, ‘subject to the jurisdiction’ was intended to exclude from its operation children of… citizens or subjects of foreign States born within the United States.” This is a specific interpretation of what the Founders intended and will serve as strong case precedent in the Trump Administration’s favor.
Two years following the Slaughterhouse Cases, in Minor vs Happersett, the court unanimously and officially recognized “doubts” that U.S. citizenship was automatic for “children born within the jurisdiction without reference to the citizenship of their parents.” The court also noted that citizenship is only attached when the immigrant owes “allegiance” to the United States.
These two cases offer the Trump Administration strong precedent in order to proceed however, there is also case precedent that supports giving citizenship to any persons born on U.S. soil, regardless of the parents’ immigration status. You see? This battle is worthwhile for both sides of the aisle.
Even if President Trump does not prevail in this arena, at least the United States will have a definitive answer with a binding decision from the Supreme Court regarding birthright citizenship. Democrats should welcome the battle, if only just to answer an important question that can only be delivered by the Supreme Court’s interpretation of the Fourteenth Amendment. A question that has never been definitively answered by the High Court.
Furthermore, if the United States Congress is to take up immigration reforms then it’s incumbent on congressional members to get an answer to this question. If they proceed with any action regarding immigration reforms without obtaining a definitive answer to the birthright citizenship question, there is a high likelihood that immigration in general will not be adequately addressed. Which will force the debate again in the near future.
We commonly hear politicians saying, “I have to wait to hear all of the facts before I make a decision.” Well, all of the facts surrounding the immigration debate have not yet been accounted for. The sooner President Trump signs that executive order, the sooner we can engage in a Supreme Court battle that will ultimately give us the answer we so desperately seek.
Regardless of how the court rules, at least there will be a definitive answer on birthright citizenship so congress can properly address immigration reforms with solid footing. Then all of those politicians who claim to want “all the facts before drawing their conclusion,” can at least appear to be honest when they make that statement.
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