After President Trump’s bombshell announcement that he intends to end the controversial policy of birthright citizenship for the children of illegal aliens, pundits immediately began offering their varied opinions on whether or not the executive branch can lawfully end the policy via executive action, and if birthright citizenship should extend to illegal aliens. However, the fact remains that any action attempting to end the policy – by anyone – will almost certainly be met with lawsuits and, ultimately, heard by the Supreme Court of the United States (SCOTUS).
If the Supreme Court indeed decides to hear a case on birthright citizenship, there are several important questions that the justices should keep in mind:
- What does the U.S. Constitution explicitly say about birthright citizenship?
- What was the original intent of the amendment’s authors?Are there any previous relevant SCOTUS cases that address the topic already?
- If so, is there any reason why SCOTUS shouldn’t just refer to that decision?
The first sentence of the 14th Amendment to the U.S. Constitution reads: “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.” Many illegal immigration apologists tout this text as an indisputable guarantee that the children of illegal aliens will be U.S. citizens if their parents are born in the United States.
However, many legal scholars note that Senator Jacob Howard, who introduced the 14th Amendment, seemed to indicate that birthright citizenship would not be extended to most foreigners. When introducing an amendment to add the text “and subject to the jurisdiction thereof,” he noted: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” After the question of Native Americans born within the U.S. was raised, he noted that they would not be included either so long as they maintained legal ties with their native tribe. So Senator Howard clearly intended, that in addition to the children of foreign diplomats, the children of other aliens who lack lawful and permanent status in the United States would also be excluded from the citizenship provisions of this amendment
The same senators who passed the 14th Amendment also passed the 1866 Civil Rights Act, which guaranteed citizenship to “all persons born in the United States and not subject to any foreign power.” In other words, those who had not established legal residence in the United States were not offered citizenship. So it makes no sense that the 14th Amendment would contradict the monumental congressional act it was intended to fortify.
Additionally, there are no SCOTUS cases that directly address the issue of birthright citizenship for the children of illegal aliens. The 1898 case most often cited, United States vs. Wong Kim Ark, only addressed birthright citizenship for the U.S.-born children of legal permanent residents.
Since there is no clear text in the Constitution that affords citizenship to the U.S.-born children of illegal aliens, nor case law that sets a sound legal precedent, a strong case can be made that offering birthright citizenship to illegal aliens is, in and of itself, an unconstitutional practice.
For decades, birthright citizenship has been abused by illegal aliens as a way to obtain benefits from the federal government and ultimately legal status through chain migration. Whether by executive order or a Supreme Court ruling, it’s time for this harmful practice to end