Yesterday Andrew McCarthy posted an article at National Review about birthright citizenship. President Trump is considering ending birthright citizenship by executive order. Actually, it’s not so much a question of ending birthright citizenship as it is reviewing exactly what the 14th Amendment actually says.
The article explains:
My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “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.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.
If I am living in Britain on a work visa and have a child, that child is not automatically a British citizen. Why should America do things differently?
The article concludes:
Moreover, it seems to me that, because Congress has weighed in on citizenship by codifying the 14th Amendment, the courts will swat down any executive order on the ground that it exceeds the president’s authority. That is, the courts will not even have to reach the merits of what jurisdiction means for purposes of the 14th Amendment and Section 1401.
We have seen something like this in an area of more certain executive power. President Bush attempted unilaterally to set up military commissions in wartime under his commander-in-chief authority. Even though there was plenty of precedent supporting this, the Supreme Court invalidated the commissions and told the president he needed Congress’s statutory blessing. (Congress later enacted the Military Commissions Act.)
Consequently, if the president actually issues an executive order changing the birthright-citizenship policy, I doubt the sun will set before an injunction is issued. I am in favor of changing the current understanding of birthright citizenship, but I believe such a change must be done by statute to have any hope of surviving court-scrutiny . . . and even then, I give it less than a 50-50 chance.