Adeola Adeyemo
President Donald Trump recently added another far-fetched suggestion to his hard-line immigration campaign by suggesting he would sign an executive order to end birthright citizenship in the US.
In a recent interview with Axios on HBO, Trump confirmed what many had suspected would be his next move. His proposal would deny citizenship to the American-born children of unauthorised immigrants and possibly to foreigners in the country on non- permanent visas.
Birthright citizenship is a 150-year-old right and a key provision of the 14th Amendment which grants American citizenship to every child born on US soil regardless of the immigration status of the parents. The legal term for this is jus soli, “right of the soil.”
The authors of the Fourteenth Amendment were clear about this provision in the constitution which says: “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.”
Birthright citizenship contrasts with blood citizenship, or jus sanguinis (“law of blood”), in which a child inherits citizenship from its parents, often from the father if the parents do not have the same nationality. During the Axios interview, President Trump erroneously said the USA was “the only country in the world” offering such benefits when actually there are 30 countries, most in the Western Hemisphere, providing birthright citizenship. They are Antigua and Barbuda, Argentina, Barbados, Belize, Brazil, Canada, Chad, Chile, Cuba, Dominica, Ecuador, El Salvador, Fiji, Grenada, Guatemala, Guyana, Honduras, Jamaica, Lesotho, Mexico, Pakistan, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Uruguay and Venezuela.
The Fourteenth Amendment, however, has an exception which excludes a group of people who are not “subject to the jurisdiction” – accredited foreign diplomats and their families. “Subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S (Erler, 2015). Supporters of a review of birthright citizenship have picked on this clause however, suggesting different interpretations to it. John Eastman of the Claremont Institute’s Center for Constitutional Jurisprudence argued that children of undocumented immigrants are not “subject to the jurisdiction” of the US and thus should not be considered citizens under the Constitution.
Trump’s power to end birthright citizenship by executive order is debatable and if he decides to move forward with it, could set up a chain of legal battles and challenges by the courts. The executive order cannot be enforced without a huge apparatus of internal control. Immigration and Customs Enforcement will, of necessity, become the skeleton of a nationwide citizenship police (Epps, 2018).
According to Axios, Judge James C. Ho of the Fifth Circuit Court of Appeals, in New Orleans said that changing how the 14th Amendment is applied would be “unconstitutional.” What would rather be a constitutional way of ending birthright citizenship is to accept the current interpretation of the 14th Amendment is accurate, and pass a constitutional amendment to override it. From all indications, this doesn’t look like the sort of thing that would ever happen.
Photo Credit: New York Post
