(Luis Cornelio, Headline USA) Two legal scholars writing for the liberal New York Times warned Democrats that President Donald Trump’s executive order clarifying who qualifies for birthright citizenship is not as legally flawed as critics claim.
Randy E. Barnett and Ilan Wurman—the respective professors of constitutional law at Georgetown University Law and the University of Minnesota—wrote Saturday that Trump’s mandate does not necessarily contradict the 14th Amendment of the Constitution. Trump’s order seeks to award citizenship to the children of Americans and lawful immigrants.
While some federal judges and leftist activists argue the amendment guarantees birthright citizenship to nearly all those born on U.S. soil—including so-called anchor babies—Barnett and Wurman opined differently. They noted that Trump’s legal stance has not yet been reviewed by the Supreme Court.
“The Supreme Court has held, in the 1898 case United States v. Wong Kim Ark, that children born here to permanent residents are citizens. But it has never squarely held that children born to those illegally present are citizens,” the two scholars wrote.
Although Barnett and Wurman approached the issue from a legal and historical perspective, they also clarified that the 14th Amendment was originally intended to extend birthright citizenship to African Americans following the Civil War.
They explained the ongoing debate over the “subject to the jurisdiction thereof” in the Citizenship Clause Doctrine. This language excludes the children of diplomats, members of invading armies and (formerly) Native Americans, groups that owe allegiance to foreign nations and were not considered subject to U.S. laws.
Enter the question of illegal aliens and “anchor babies.”
“Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?” Barnett and Wurman asked.
“Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity.” they added. “They gave no obedience or allegiance to the country when they entered — one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws.”
The scholars also pointed out that illegal aliens can be “summarily removed from the country without judicial procedures of the sort that would protect citizens.”
Barnett and Wurman concluded that the Supreme Court has never formally ruled on whether the 14th Amendment applies to children of illegal aliens. Though, they warned, “When they finally consider this question, the justices will find that the case for Mr. Trump’s order is stronger than his critics realize.”
The column comes less than a month after Trump signed an executive order barring federal agencies from granting U.S. citizenship to individuals whose parents are not U.S. citizens or lawful permanent residents. It also excludes individuals whose parents are in the country legally but temporarily, such as visa holders.
Under current legal interpretations, a woman can become pregnant in her home country, wait nine months, and enter the U.S. illegally just before giving birth. Her child would then be granted U.S. citizenship, permanently linking the foreign individual to the country.
Among the 32 member countries of NATO, only the U.S. and Canada offer unrestricted birthright citizenship, according to The Hill. Not even Haiti, the poorest country in Latin America, has such a policy.
