Constitutional experts and other lawyers are offering their opinions to anyone who will listen about whether everyone born in the United States automatically gains U.S. citizenship according to our Constitution. President Trump has ignited that issue by saying he is planning to issue a determination that the children born in the United States to persons who do not have legal residence here do not become U.S. citizens. So the debate is now focused on whether the President has the power to make that determination.
These are a few key points to be considered:
- The 14th Amendment to the Constitution is ambiguous when it specifies that those born in the United States “…and subject to the jurisdiction thereof” gain U.S. citizenship.
- It is clear that the provision means that not all children born in the United States gain U.S. citizenship. It seems to be generally agreed that those children born here to foreign officials do not gain our citizenship. But, who else?
- The U.S. Supreme Court has never specifically decided that issue. The most relevant case considered by the Supreme Court was in 1898, but it had to do with the U.S.-born children of legal U.S. residents
- The question whether the children of illegal residents become U.S. citizens has huge implications, because it is fundamental to establishing the most basic element of sovereignty.
Whether Congress or the president try to decide the issue by law or decree it will be challenged in the courts and eventually arrive before the Supreme Court for a ruling. With the Congress immobilized by the insistence of Democrats that no immigration reform legislation be approved if it does not include an amnesty for millions of illegal residents and the refusal of most Republicans to adopt a new amnesty, the announced action by the president may be best understood as a means to bypass the legislative logjam and launch the effort to put the issue before the Supreme Court.