Birthright Citizenship on the chopping block
“birthright citizenship is enshrined in the US Constitution.” Thus said the great writer Manny Otiko here on Medium a day ago[5]. Are you SURE about that, Manny?
Trump has issued an executive order which prohibits federal agencies from issuing citizenship documents to U.S.-born children of undocumented mothers or mothers in the country on temporary visas, if the father is not a U.S. citizen or permanent resident. The Trump Executive Order [9] reads:
But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
First, as you will read below, the court(s) have indeed said that citizenship is universal if born on US soil,. so that part of the Trump order is repudiated. But the second part is another attempt to subvert the meaning of the 14th amendment with the jurisdiction argument.
The order refers to federal citizenship documents. But what documents does this refer to?
The federal government, specifically through the U.S. Citizenship and Immigration Services (USCIS), issues two primary citizenship documents: a Certificate of Citizenship for those who acquired citizenship at birth, and a Certificate of Naturalization for those who became citizens through the naturalization process; both documents serve as proof of U.S. citizenship. I don’t know about you but I was born here and I don’t have either of those documents. So how much impact can the EO actually have? If a child is born here, gets a birth certificate and then later a driver’s license from a state, that child as an adult can apply for a passport by providing that birth certificate! How is the state department going to deny a passport when nothing in the requirement is other than the birth certificate as a document?[10]
But now several states have sued to have the courts review this executive order and I am worried they have just played into the hands of the administration. Perhaps they should have waited to see how exactly this EO would have played out.
Trump has already said he would deport citizen children with their undocumented parents. He also wants to reverse naturalization of some people and deport them. Trump cannot end birthright citizenship by himself. But he will have a friendly right wing SCOTUS do it for him. Constitutional is what SCOTUS says it is.
There are already provisions in the law which can reverse naturalization. “Naturalized citizenship can be revoked through a process called denaturalization. Denaturalization is an involuntary process that removes a person’s status as a US citizen. It can happen if the US Citizenship and Immigration Services (USCIS) discovers that a person’s citizenship was obtained through fraud or by violating US law.”
As to “birthright citizenship” here is my prediction- shortly after Trump takes office some wingnut will judge shop for a Trumper/FederalistSociety judge. They will challenge somebody’s status as birthright citizen. The case will wind up before our current rightwing SCOTUS.
The first line of the 14th Amendment [8] reads: “All people born or naturalized in the United States are citizens…and subject to the jurisdiction thereof”
SCOTUS has never met a precedent it wasn’t willing to overturn unless, of course, it is a “super-precedent” (See Dobb’s decision[1]) and I don’t see that they have ever identified a super-precedent.
Scotus has no issue disregarding Standing by letting filers pursue cases who actually have no standing (see Biden v Nebraska cancelling student loan forgiveness). To establish standing, a party must show that they have a direct stake in the outcome of the case. The current court majority loves to use newly invented doctrines to overturn previous rulings and precedent such as historicism and orginalism and major questions doctrine.
SCOTUS has used several specious arguments such as the “historical” argument used in gun lawsuits like NYState Rifle & istol Assn v Bruen[3] — in other words, what did the framers of the Constitution mean at the time.
In this case, what did the Authors of the 14th Amendment actually mean when saying “all people born… in the United States are citizens.”?
In 1857, Justice Taney and SCOTUS when ruling against Dredd Scott [6] not only said he could not be a citizen but “that no black person, free or enslaved, could ever be a US citizen.” The 14th Amendment was written directly to refute that and ensure that former slaves were consididered citizens. The 14th amendment was created to address that issue- to refute Taney that former slaves could not be citizens.
Then, in 1898, the court ruled in US v Wong Kim Ark [7] that Wong was indeed a citizen having been born on US soil to Chinese immigrants. However, during that case a key element was the phrase from the 14th amendment “subject to the jurisdiction thereof” as related to relations with China at the time, specifically the emperor of China in that the child in question was “not subject to any foreign power.” The court further noted that if they denied citizenship to Wong, they would have to deny it to children born in the USA to Irish, German, Italian, and other white immigrants. This at a time when the USA was experiencing a surge in immigration from countries like Ireland, Germany, Italy, Austria-Hungary, and Russia.
That the authors meant to protect the citizenship of black people in the USA because previous court rulings like the infamous Dred Scott [4] case in which Chief Justice Roger B. Taney declared that Black people could not be citizens of the United States, stating that they were not considered “people” under the Constitution. The argument will be that THAT is the primary purpose of the Amendment- a one time declaration to clear up Taney’s stain of a ruling and ensure black people are citizens.
The current court majority has been quite obviously cherrypicking history to use their “historical” background as substance for reversals of precedence or outright rulings for example requiring that modern gun laws be consistent with the history of firearm regulation in the United State. I predict this same historical approach will be used in lawsuits which will reach SCOTUS on birthright citizenship. The argument will be that the 14th amendment was narrowly written as a focus on newly freed black slaves and their children and descendents but was never intended to cover the births of immigrants to the USA legal or otherwise in perpetuity. When presented with the Wong case, the argument will be glossed over using the “subject to any foreign power” in some manner was well as dismissing the ruling as flawed reasoning at the time by the court and reversing it because it does not rise to a super-precedent level.
SCOTUS will then rule in favor and overturn 150 years of rulings paving the way for more deportations and expelling people who never new a life anywhere but America.
[4]
https://nmaahc.si.edu/explore/stories/human-factor-history-dred-scott-and-roger-b-taney
[5]
https://mannyotiko1.medium.com/trump-reminds-us-why-hes-king-of-the-dumbasses-56dae7d7f69a
[6]
https://www.archives.gov/milestone.../dred-scott-v-sandford
[7]
https://constitutioncenter.org/.../united-states-v-wong...
[8]
https://constitution.congress.gov/constitution/amendment-14/
[10]
https://travel.state.gov/content/travel/en/passports/need-passport/apply-in-person.html
