While I’m still not entirely convinced that President Trump will attempt to end birthright citizenship via Executive Order (remembering that he suggested this week that perhaps Congress should handle it), Hans von Spakovsky at National Review has put forward a rather compelling argument as to why it should be possible. He’s not the first to champion this line of debate, at least as a mental exercise, but he offers a persuasive and more fleshed out case. His argument relies primarily on not only the meaning of the “subject to the jurisdiction” clause but to the President’s ability to direct federal agencies to uphold both the Constitution and existing federal law as he legally interprets it, at least until challenged in court. (Emphasis in original)
Simply put, the president does have the ability through executive action to direct federal agencies to act in accordance with the original meaning and intent of the citizenship clause, and to direct those agencies to issue passports, Social Security numbers, etc., only to those individuals whose status as citizens meet the requirements of the law. This is especially true here where, contrary to Andy’s speculation, Congress actually did not clarify that its later statutory provision was somehow inconsistent with the original understanding of the Amendment.
Congress codified the citizenship clause in Section 301 of the Immigration and Nationality Act of 1952. Section 301 of the INA (8 U.S.C. §1401(a)) simply repeats a portion of the language of the 14th Amendment, stating that an individual shall be a citizen of the U.S. if he is “born in the United States, and subject to the jurisdiction thereof.” As Andy correctly says, the term “subject to the jurisdiction” of the U.S. was understood at the time this Reconstruction era amendment was adopted “to mean not owing allegiance to any other sovereign.”
Reading the entire piece will flesh this out for you more fully, but those are the two primary claims being made here. First, if an illegal alien crossing our borders is still technically a citizen of another nation they still owe allegiance to and are subject to the laws of their home country. The second part of the formula is a bit less specific, but essentially repeats the existing pattern of previous executive orders where presidents of both parties have instructed federal officials to “interpret” certain laws differently than their predecessors.
I’m not really opposed to either of those premises, so let’s just say that von Spakovsky is correct and this could be done. And let’s further extend this hypothetical world to the point where nobody challenges it and ties it up in the courts until long after Trump leaves office. In that scenario, Tump pulls out another win, birthright citizenship is ended and his conservative base (including yours truly) cheers him on, right? Sure. But what happens in 2020 or 2024? The next Democratic president could simply undo the action playing by precisely the same rules.
This is because we’ve been making this mistake for too long now. As a parallel example, the question of transgender identity in the definitions of sex and gender are already undergoing this tug-of-war. Barack Obama used an EO to “redefine” sections of Title IX for the bizarre interpretation preferred by social justice warriors. Donald Trump’s Health and Human Services Department is now “redefining” it back to its old definition. Until there is a final court ruling (or at least some legislative action) this can and most likely will continue indefinitely.
With all that in mind, we seem to be stuck in a standoff. It’s conceivable (though by no means assured) that an Executive Order from Donald Trump ending birthright citizenship could hold up in court. But even if it did, the next liberal president would win the same battle in court when he or she reverses it. And what does that get us in the long run? A few years where some babies aren’t granted citizenship.
I’ll grant you that it’s not an insignificant number. A recent Pew Research report indicates that there were at least 250,000 children born to illegal alien mothers in the United States in 2016, and that was actually a record low number.
So if the Executive Order goes through (and stands up to a court challenge) we’ll basically have created another quarter million illegal immigrants, except they’ll be the likely focus of the next Democratic “Dreamer” effort in twenty years. But if conservatives can hold on to control of both chambers in the legislative branch and actually change the immigration laws to specify this, it would at least be harder for the next president to reverse course yet again.
Where does all of this leave us in terms of von Spakovsky’s proposal? Maybe he’s right. Maybe this is something the President could do. But perhaps we’re back to the question posed by Jeff Goldblum’s character in the original Jurassic Park flick. The issue isn’t whether you can do it. It’s whether you should.