Monday, November 05, 2018

On The Recent Birthright Citizenship Kerfuffle...
(Musings of your humble servant at Rerum Novarum)

To unscramble the whole "birthright citizenship" issue for any of you who are confused, like Clarissa I will explain it all for you at this time.

First of all, no president can make law by executive order and if they try to do so and it is challenged, when said executive order came before SCOTUS, they would strike it down.{1} Laws have to be made or unmade by Congress.

Having gotten that out of the way, for those worried about "gee if Trump and Co. can do this to some born here, does that mean I am potentially in trouble?", it depends on the particulars. Observe:

--If your parents were born here when you were born and you were born either here or abroad, you are a natural born citizen.{2}

--If one parent was born here, the other parent was here legally, and you were born here or born abroad, again you are a natural born citizen. A statute from 1934 establishes this, previously it required ones father to be a citizen whereas a citizen mother for a child born abroad was not sufficient -assuming the other parent was here legally of course. To affect this, Congress would have to pass a statute to do so and that is not going to happen. Even if they did though, it would only affect non-citizens whose children were born abroad.

--If your parents were non-citizens but were still legal immigrants and you were born here, you are a natural born citizen -the Supreme Court was clear and unequivocal on this.{3}

Nothing Trump and Congress do would affect those points or persons affected by the above.


If your parents are illegal and you were born here, it is debatable if the "subject to jurisdiction" clause of the 14th Amendment actually applies since by being illegal said parents would be flouting US jurisdiction on immigration. In this murky area Congress could pass a statute making adherence to US immigration laws part of what "subject to jurisdiction" means and that would mean children born to illegals on American soil do not meet the jurisdiction requirement to be citizens at birth. Congress could also make this law retroactive to any given point in time. All of this would be constitutional if enacted{4} at some point by the Congress and signed into law by President Donald Trump.


{1) Youngstown Sheet &; Tube Co. v. Sawyer circa 1952 is the precedent they would cite in doing so.

{2} See these threads for discussions on this matter if you have not already:

On Natural Born Citizenship (circa October 29, 2018)

More on Natural Born Citizenship (circa October 31, 2018)

{3} See US vs Wong Kim Ark from 1898.

{4} For those who question this interpretation, proof that it is right can be found in various statutory laws Congress passed over the years as the Constitution vests full power on matters of immigration and naturalization in Congress. I will use one such example from the past: the Indian tribes. Indians even born on US soil were not considered citizens at birth for a long time because they were considered to be under the jurisdiction of their tribal nations. Congress changed the jurisdiction requirement where Native Americans were concerned by statute in 1924. Now an Indian born on tribal land is considered a citizen at birth whereas previously they were not.