When it comes to the 14th Amendment, my good friend and fellow Justice Department veteran Andy McCarthy agrees that it does not require birthright citizenship. And we’re not alone: Other experts, such as noted constitutional law scholar John Eastman, law professor and former dean of the Fowler School of Law at Chapman University and a senior fellow at the Claremont Institute, take the same position on the citizenship clause (“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”).
But Andy and I differ on one very important point: whether the misinterpretation of the Amendment can be changed by executive order. He doesn’t think so; I say that it can.
Simply put, the president does have the ability through executive action to direct federal agencies to act in accordance with the original meaning and intent of the citizenship clause, and to direct those agencies to issue passports, Social Security numbers, etc., only to those individuals whose status as citizens meet the requirements of the law. This is especially true here where, contrary to Andy’s speculation, Congress actually did not clarify that its later statutory provision was somehow inconsistent with the original understanding of the Amendment.
Congress codified the citizenship clause in Section 301 of the Immigration and Nationality Act of 1952. Section 301 of the INA (8 U.S.C. §1401(a)) simply repeats a portion of the language of the 14th Amendment, stating that an individual shall be a citizen of the U.S. if he is “born in the United States, and subject to the jurisdiction thereof.” As Andy correctly says, the term “subject to the jurisdiction” of the U.S. was understood at the time this Reconstruction era amendment was adopted “to mean not owing allegiance to any other sovereign.”
It seems rather obvious that children born to aliens who are in this country either legally or illegally are citizens of the native countries of their parents. Those children owe political allegiance to their parents’ native countries and thus are not within the political jurisdiction of the U.S. As Andy points out, if a “child is born in France to a married couple who are both American citizens, the child is an American citizen” and thus “subject to the jurisdiction” of the United States.
The fact that any alien in the U.S. is subject to our territorial jurisdiction, and can therefore be prosecuted for breaking our laws, does not make them subject to the complete, political jurisdiction of the U.S. They owe no allegiance to the U.S. government and can’t be drafted into the military (if we re-imposed a draft); can’t be forced to serve on a jury; don’t have all of the same obligations, responsibilities, and rights that citizens do.
But Andy doubts that the president can change this through an executive order. The “issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted,” he writes. That is a cogent observation.
But, in fact, the legislative history of the INA does not reflect that Congress had a different understanding of “jurisdiction” in 1952. There is almost no discussion of this provision in the congressional record. One of the only lengthy discussions (but not about the jurisdiction requirement) is by Joseph Rider Farrington, who was the Territory of Hawaii’s delegate in the U.S. House of Representatives. He complained about the restrictive immigration measures at the time that didn’t allow permanent, resident aliens from Asian countries who were the parents of American citizens born in Hawaii to apply for citizenship.
This discussion by Farrington does not add any more to this debate than the 1898 holding in U.S. v. Wong Kim Ark, which stands only for the very narrow proposition that the U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing about the U.S.-born children of illegal aliens or aliens who are here temporarily like tourists.
There is nothing in the congressional record of the passage of what became 8 U.S.C. §1401(a) that indicates that members of Congress had any different understanding or intent with regard to the citizenship requirement of being “subject to the jurisdiction” of the U.S.
In fact, at one point in the debate in the House of Representatives on April 23, 1952, Representative Thomas A. Jenkins (R., Ohio) asked Representative Louis E. Graham (R., Penn.) whether the bill changes any of the “legal definitions that have from practice become practically a part of the law” on immigration and naturalization. Graham’s answer? The Immigration and Nationality Act “restates the former definitions in accordance with existing law and the most recent decision of the Supreme Court of the United States.” So no change in the definition of “jurisdiction.”
Aside from the country to which they owe their allegiance (and, apparently, most of their wages), they are not subject to OUR jurisdiction until they are known to exist. So, if they get drunk, run a red light and T-bone another car, then take off, they aren’t subject to US rules and laws because they are not known to exist here and cannot be located to BE subjected. Simply put, they aren’t here except to collect the bounty of being here. Well, that bounty needs to be cut off. Illegal immigration would then cease to be a problem.
If he said he was by executive order backing the birth tourists they would still take the opposite position. It is not never will be about people or citizens.
RESIST!
Yeah, sure, he can end it by simply tapping the Fourteenth Amendment with his Magical Presidential Fairy Wand, just like he says he can tap himself on the head with it and pardon himself of all crimes.
Right wing intellects are trying to spin Constitutional Originalism into a license to rewrite 21st Century laws, by narrowing the definitions of words, terms, and concepts to their own interpretations of the meaning they held for late 18th Century minds. There are a couple of problems with this. One is that their own interpretations are a product of their own intentions and biases. The other is that the world they want to apply their results to did not exist in the late 18th Century.
All of which flies over Trump’s head, of course. All he’s interested in is the license.
@Greg: Its that old Egyptian magic https://www.dailymail.co.uk/news/article-6327037/Trump-waves-serpent-staff-Melania-pass-chocolate-treats-Halloween.html
@Greg:
He can use the magic wand Obama said he would need to bring back all those manufacturing jobs he was sure he had permanently destroyed.
Explain why a child born of illegal immigrants on our soil paid for by taxpayers deserves citizenship?
Because we’re a nation ruled by Constitutional laws, and the Fourteenth Amendment says so. The law of the land is all the “deserving” that is required.
@Greg: You have no respect for the constitution or original intent.
“Simply put, the president does have the ability through executive action to direct federal agencies to act in accordance with the original meaning and intent of the citizenship clause, and to direct those agencies to issue passports, Social Security numbers, etc., only to those individuals whose status as citizens meet the requirements of the law. ”
No, he certainly does not.
@Greg: Well, the Constitution doesn’t say they get it; it has to be broadly interpreted to provide that. So, what would be the justification for granting such a valuable gift to the child of criminals who don’t even pay for the birth?
I remember how much respect for the Constitution you had when you supported Obama turning the IRS upon conservatives, running guns to Mexico and running illegal surveillance on law-abiding citizens.
Section 1, Clause 1, of the Fourteenth Amendment, reads:
Do you have trouble with the word all?
Do you think a person born in the United States is not subject to the jurisdiction thereof? That they’re outside the jurisdiction of, and somehow immune from state and federal laws? Do you think if such a person were to break such a law, it would be ignored?
With the exception of foreign diplomats, people inside the United States are generally under the jurisdiction of the United States, simply by virtue of being here.
@Greg: I not only read that just fine, but I also read “subject to the jurisdiction thereof” very well, too. They are not known to be here; they have melted into the background and have to stay there to avoid deportation. They owe their allegiance to the country they left, not the U.S.
You apparently don’t read as well as you imagine you do. Birthright citizens are as much U.S. citizens as you are.
@Greg: Not those of illegal immigrants. The aren’t even “U.S. persons”. They are fugitives.
So let him have a go at it and let’s see what happens when it hits the Supreme Court. What does he intend to do? Make it retroactive and strip people of their citizenship? The man is an idiot.
I’m so weary of this tiny little man’s arrogance and appalling stupidity. Not to mention people who can’t seem to recognize pre-election stunts. Trump rushed troops to the border like there’s some impending menace. In fact, the migrant parade is still weeks away from the border, and diminishing in numbers with every passing day. The current estimated cost to U.S. taxpayers of keeping troops on the border through the end of the year is up to $200 million. How many additional border guards would that have paid for? Of course, that’s still cheaper than the estimated $21.6 billion required to build his wall—which, I assume, Mexico won’t be paying for, Trump’s claim notwithstanding.
@Greg:
Only an idiot would imply retroactive effect. No one has suggested this… fear tactics.
Um… 10,000 illegal immigrants wishing to storm our border en masse. At some point, our government has to make a stand in support of living a lawful life. Otherwise, we will continue to be challenged with those who have no respect for our laws whatsoever. If you recall, when Trump was elected, illegal immigration shrunk to a trickle on the shear power of his rhetoric about enforcing our laws and protecting the border. That’s how easy solving the illegal immigration problem is. Only once the illegal immigrants got the message, spread by open border leftists, that the old laws are still in place, liberal federal judges will still block lawful enforcement and what the loopholes were did the flow of illegal immigration pick back up. So, now we have soldiers and concertina wire, thanks solely to our leftist, America-hating liberals.
You have spoken about “we’re a nation ruled by Constitutional laws” yet you only support that which breaks our laws and violates our sovereignty and Constitution. Like other liberals, when Trump supports following and enforcing legitimate laws, you oppose it simply because he is for it. That is the penultimate example of WRONG.
Yet you never worry about the cost of the illegal immigration you liberals continue to promote and encourage.
Which a one-time payment to stop the illegal immigration that costs us $200 billion a year. And, yep, Mexico WILL pay for it. If we had the wall, we would not be deploying troops to the border… because the wall would do that job and there would be no 10,000 illegal immigrants coming here thinking they will walk right through. THINK about it. For a change.
Really? What’s the logic of recognizing that a baby born in the United States to undocumented parents yesterday has birthright citizenship, while one born after midnight tonight does not, when the Fourteenth Amendment remains and there’s been no legislated change in the law?
Trump is an idiot. He doesn’t have the constitutional authority to overturn parts of the Constitution that he and his cult followers don’t like, simply by decreeing that it shall be so. No president has such authority.
He’s claiming again today that his administration is busy working on a 10 percent tax cut. Maybe we could abolish taxes altogether, and just order the treasury to print up however much money we need to run the country. Think of the many benefits! By reducing taxes to zero, revenue could truly become infinite!
Horse hockey. It’s a made-up number. How much do they contribute to the economy, by doing millions of jobs that U.S. employers aren’t willing to pay decent wages to have done? How much is corporate America costing American workers by shipping their higher paying jobs overseas? When is the last time you cared enough to look for a Made in the U.S.A. label while shopping?
@Greg:
Because, as I have clearly explained, the 14th Amendment in no way provides for illegal immigrant children born here deserving citizenship. That is an interpretation to serve a particular purpose. So, all that is required is to make the proper interpretation of the intent.
The only thing he would overturn is a misinterpretation.
Given the Congressional power, the Republicans would reduce wasted spending and failed policies and bring spending in line with the money we have to spend. As has been shown, with liberal spending, no matter how high the tax rate, it does not keep up with the wasteful spending. So, spending reductions are what is needed; not destructive taxes.
No, it’s not a made up number and that is AFTER their “contribution” but not taking into account the human cost of the crimes they “contribute” to our society.
That was under Obama. Now, they are coming back.
There are very few to be found, thanks to bloated union wages, onerous regulation, high taxes and unfair tariffs imposed on US goods. Again, thanks to Trump, all of that is being addressed. Yet, the left prefers the deterioration of the past. Why do you prefer failure to success?
@Deplorable Me, #17:
You haven’t “clearly explained” diddly squat. What’s clear is what the Fourteenth Amendment says, in plain, utterly unambiguous English that any 5th grader of average or greater intelligence should be able to understand:
The right’s horseshit about a child who is born inside the borders of the United States not being under the jurisdiction of the United States is utter nonsense.
What your argument is saying is that a child born within the borders of the United States is immune to the laws that govern the nation and state in which he or she is born; that the courts of those entities have no power or control over him or her. This is so ridiculous it hardly even merits serious discussion. What is supposed to apply? The laws of the Mexico, or Honduras, or wherever?
You people hear a conclusion you like spoken by Donald Trump, and at that point seem to turn off any further thought, as if this guy actually has some clue what he’s babbling about. He clearly does not. The guy is a conman. He’ll tell you whatever he thinks you want to hear while he picks the nation’s pockets.
@Greg: You still don’t see it and I am coming to believe you are incapable of seeing it. A person here illegally is not under our jurisdiction until they do something that gets them caught and in custody. Only THEN have they been forced to be under our jurisdiction; prior to that, they were HIDING from our jurisdiction. When they show up at a hospital to give birth, instead of receiving citizenship, by law they should be deported. You don’t get citizenship for breaking the law. THAT is idiotic.
Read THIS. In no other instance does simply being born here confer citizenship. Not even to Native Americans; that took a different law altogether. The only time the 14th has been used to confer citizenship was to babies born to LEGAL residents.
I realize you don’t know anything but what CNN, MSNBC or MoveOn hasn’t told you to know, but the intention to clarify the 14th Amendment to do what it SAYS predates Trump’s political aspirations. The 14th Amendment conferring US citizenship upon children born to law-breaking illegal immigrants here against our immigration law is more of an urban legend than Constitutional; it only happens because it has become routine.
@Greg:
You’re the one dealing in horseshit, always looking for the pony.
A citizen of a foreign nation does not cease to be a citizen of that nation (under the jurisdiction thereof) when they cross into another nation. You do not lose your rights as an American citizen if you sneak into Canada illegally. If you do, you are, and remain, a citizen of the U.S. and under the jurisdiction of the U.S.
If you are correct, then why are foreign nationals, when arrested on U.S. soil, entitled to counsel from the embassies of the nation that they are citizens of? That is because, you dipshit, entitled to the protection of the nation that maintains “jurisdiction” over them.
Now, perhaps you can tell us when granting birthright citizens to everyone who illegally crosses our border started. It was NOT in the late 19th century. I doubt that you know. And when was “under the jurisdiction thereof” ever challenged in an American court. Don’t quote Ark. Ark is not applicable because both his parents were legal residents of the U.S.
Greggie Gullible, you remain an idiot.
If the 14th Amendment grants birthright citizenship, why are foreign diplomats and embassy staffs excluded?
The only clause in the 14th that would affect diplomats is the jurisdiction clause.
If the jurisdiction clause excludes diplomats, it can also exclude non-citizens and non-permanent resident aliens. It can exclude illegal immigrants.
@SouthernRoots, #21:
Because they have diplomatic immunity from the laws of the nation where they are serving in that capacity, and are not under the jurisdiction of the nation where they are serving. If a foreign diplomat were to commit a crime here, they could not be prosecuted unless the foreign nation they represent agrees. The United States could only expel them and guarantee them safe passage out of the country.
@Deplorable Me, #19:
They sure as hell are. With certain exceptions, if you’re on U.S. soil you’re under U.S. jurisdiction and you’re subject to U.S. laws. If you’re born here, you’re a U.S. citizen from birth. That’s a fact, whether anyone like it or not. It’s a fact whether Donald Trump likes it or not. People need to stop believing nonsense just because some reality-TV-host-turned-politician says it. People need to reclaim their intelligence.
@Greg: You see DT doesnt do things without consulting with experts. Your silly argument about Birth tourism doesnt hold water. As with the rest of the constitution there are supporting documents as to intent of the 14th. We are sure this will go to the courts. I see you have abandoned the idiocy that it had been decided by the supreme court as the case YOU pointed out showed clearly the legal status of the parents at time of birth.
@Greg:
Really. So Mr. Illegal Immigrant that gets drunk and T-bones John Q. Public and kills his daughter, then flees the scene and goes back to Mexico is “under jurisdiction”? Because he sneaked over and never registered anywhere, he is unknown, invisible, non-existent. No one knows who he is, where he came from or where he went.
He only come under “jurisdiction” if he gets caught. Otherwise… no, not so much.
Now, I know how you Democrats hate the reminiscence of losing the slaves, fighting every effort to blend them into society and make THEM citizens. That’s why the left wants to give the 14th Amendment, meant for the freed slaves, to the NEW slaves; the illegal immigrant. Blacks are once again getting free of the liberal plantation, so the left needs to restock the plantations with new slaves. Only so much can be done through voter fraud.
@Deplorable Me:
The Midterms
Beto Being Investigated by the FEC for Campaign Fraud
Democratic Party of Georgia Being Investigated by the FBI/DHS, and State of Georgia for Cyber Hacking
Abrams – Supported by Black Panthers & Linda Sarsour
Gillum – Campaign Fraud, Violations, and more!
talk about desperate.
@kitt:
He doesn’t know who the experts are. He collects people who subscribe to his own world view and whose opinions further his own agenda.
@Greg: What ever
@Deplorable Me, #25:
The jurisdiction and laws of the United States end at the nation’s borders. When you cross the line into another sovereign nation, you’ve entered another nation’s legal jurisdiction. There might be a possibility of extradition. It depends on whether or not we have an extradition treaty with the nation in question, and on their own laws. Generally speaking, a person is under the jurisdiction of the country they’re physically present in, and subject to all of that nation’s laws.
We have no extradition treaty with Russia, for example. If any of the Russian agents Mueller has indicted set foot in the United State, however, they could be arrested on the spot. They’d be under U.S. jurisdiction the moment they stepped off the airplane onto U.S. soil.
@kitt: Well, you know full well that whenever anything is accused of a Republican, the left immediately declares that candidate should drop out of the race (that magically makes the accusations go away). Yet, when a liberal comes under investigation for crimes, the left doesn’t really care. It’s almost as if they EXPECT their candidates to be criminals.
@Greg:
Like Obama ignoring all advice and pulling out of Iraq, presenting the gift of ISIS to the world? Trump FOLLOWS advice and has good advisers.
Yeah… when you SIGN IN. When you let that nation know you are here, usually by showing your passport. However, if you are completely unknown and invisible, you are not subjected to any federal or local laws or regulations. You don’t have to renew a drivers license, pay taxes, pay tickets or meet any other requirements… OUT of jurisdiction.
Perfect. Who is he? OH! That’s right… he NEVER EXISTED IN THE UNITED STATES as he was invisible.
Not if they came in over our open southern border undetected. Jurisdiction free. Get it? Kinda? A little?
Birthright citizens, born inside the United States and legally under United States jurisdiction from the moment of their birth, are not invisible. They have birth certificates.
Will Donald’s presidential decree declaring children born in the United States that he doesn’t want to recognize are not under U.S. jurisdiction, and therefore not subject to federal and state laws?
The man is an idiot.
@Greg: When they are here illegally, living under the radar and off the grid, they AREN’T under US jurisdiction. THAT’S the problem. Liberals simply don’t understand that laws are in place for a reason and they should be followed, even if they don’t benefit your ideology.
If they’ve got a U.S. birth certificate, they aren’t here illegally, nor are they living under the radar or off the grid. They’re U.S. citizens from the moment of their birth. This is a fact you obviously don’t like, but whether you like it or not isn’t relevant to the Fourteenth Amendment to the Constitution. Nor does it matter that Donald Trump doesn’t like it. He is not above the law. If he behaves as if he is, the law will remove him from office.
@Greg: No, I don’t like the taxpayer-funded births to the taxpayer funded illegal immigrants results in a taxpayer-funded US citizen. Either you believe in the rule of law, or you don’t. Either you believe illegal immigration should not be rewarded with citizenship for their children born here under illegal circumstances or you don’t believe in the rule of law.
Claiming the 14th Amendment grants citizenship to the children of illegal immigrants is the broadest and most convoluted interpretation of that Amendment and it will take very little effort to accurately interpret it.
You forgot to mention taxpayer-funded education. Or the fact that as U.S. citizens, second-generation immigrants are more likely than average to become hard-working taxpayers.
Actually, it’s precisely what the Fourteenth Amendment says should happen. The people who ratified it didn’t give a damn who your parents were. If you’re born here within the jurisdiction of the United States, you’re a citizen from birth. Period.
@Greg:
They are also likely to become criminals. There are good and bad. None of that justifies handing citizenship out like candy to people committing a criminal offense by even being in the hospital giving birth.
No, interpreting it that was is an abomination. It was created solely to provide freed slaves, including children, their citizenship. It was NEVER intended to reward those who violate our laws with citizenship.
Not “within” the jurisdiction but “UNDER” the jurisdiction. That is a vast difference.