President Donald Trump summoned two unusual allies in his call to limit birthright citizenship: Harry Reid and Barack Obama.
Last week, Axios reported that Trump wants to use an executive order to stop giving birthright citizenship to children born here to illegal alien mothers. Currently, the government gives citizenship to almost every child born in the United States.
“If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant?” Reid said in 1993. “No sane country would do that, right? Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship.”
Reid reversed his position some time later, but his logic is still sound.
Tellingly, Reid’s bill wasn’t a constitutional amendment. It sought to clarify Congress’s interpretation of the 14th Amendment. You’ll often hear that anyone born here is automatically a citizen because of that amendment, but that’s not true. It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
What does that phrase “subject to the jurisdiction thereof” mean? That’s the subject of much debate. Some scholars say illegal immigrants are subject to the country’s laws — they can be charged with crimes — so that means they’re under U.S. jurisdiction. Others argue that phrase at the time meant “not owing allegiance to any other sovereign.” For evidence, they note that the government used that clause to deny citizenship to some children born here. Excluded groups include non-citizens aboard foreign vessels that rest in U.S. waters and tribal Native Americans. Congress granted Native Americans citizenship by statute in 1924.
Complicating the debate further is that when Congress passed the 14th Amendment in 1866, illegal immigration didn’t exist. The federal government didn’t pass immigration restrictions, aside from ending the international slave trade, until 1875.
Given those facts, it’s a stretch to conclude the 14th Amendment grants citizenship to children born to illegal immigrant parents. There’s no Supreme Court precedent involving illegal immigrant parents, either.
But can Trump do this via executive order? The Constitution gives Congress the power to regulate immigration. Trump’s argument is that he would just instruct his agencies to reinterpret the immigration law Congress passed in 1952, which has language mirroring the 14th Amendment.
He’s said that if then-President Obama could create DACA by executive order, then he could end birthright citizenship. Two wrongs don’t make a right, however. Immigration belongs to Congress, and the president shouldn’t be able to reinterpret the meaning of words that have been in effect for decades. This is similar to how Obama was wrong to redefine the word “sex” in Title IX to mean gender identity.
When it comes to birthright citizenship, Trump is right on the merits but needs to refine his tactics.
Victor Joecks is a columnist for the Las Vegas Review-Journal.