Birthright citizenship comes up again

Last Sunday (December 8), President-elect Donald Trump gave an interview to Kristen Welker, hostess of Meet the (De)Press(ed). Among the many subjects they talked about, was the question of birthright citizenship. Welker asked Trump about that, obviously in an effort to embarrass him. Without the slightest blush, Trump reiterated his intention to end the practice. The only remaining question is, how can he do it, and with whom would he have to argue. He, or his Solicitor General.

Birthright citizenship – what is it?

CNAV has already discussed birthright citizenship at some length, and also the concept of natural born citizenship. In fact, the common law recognizes two ways to establish birthright citizenship:

• Jus soli (the Law of the Soil), according to which a person is a birthright citizen of the country on the soil of which he is born, and
• Jus sanguinis (the Law of the Blood), according to which a person inherits the citizenship of his parent(s).

Jus soli is an English common law philosophy, whereas jus sanguinis derives from Roman law.

When President-elect Trump proposes ending birthright citizenship (as he did last year), he is talking strictly about revoking jus soli. He is not talking about jus sanguinis, through which a baby inherits the citizenship of his or her parents.

When Kristen Welker asked Trump about his plan, this exchange followed:

Q.: You promised to end birthright citizenship on day one.

A.: Correct.

Q.: Is that still your plan?

A.: Yeah. Absolutely.

Q.: The 14th Amendment, though, says that, quote, “All persons born in the United States are citizens.”

A.: Yeah.

Q.: Can you get around the 14th Amendment with an executive action?

A.: Well, we’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it. We’re the only country that has it, you know.

Q.: Through an executive action? You’re going to —

A.: You know we’re the only country that has it. Do you know if somebody sets a foot, just a foot, one foot, you don’t need two, on our land, “Congratulations you are now a citizen of the United States of America.” Yes, we’re going to end that because it’s ridiculous.

Q.: Through executive action?

A.: Do you know — well, if we can, through executive action. I was going to do it through executive action but then we had to fix COVID first, to be honest with you. We have to end it. It’s ridiculous. Do you know we’re the only country in the world that has it? Do you know that? There’s not one other country.

The exchange continued with a lengthy answer about how many judges we have in this country – whether immigration judges or Article III judges, he didn’t make clear. One thing did become clear: for the first time, Trump has conceded that his proposed executive action might not suffice.

What the Constitution actually says

In fact the full relevant text of Amendment XIV Section 1 reads:

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.

“Subject to the jurisdiction” is key. This does not apply to children born to foreign diplomats – for by convention their citizenship is with their home country. Nor would it apply to the children born to a hostile invading or occupying force. But those who wrote Amendment XIV didn’t reckon on a population of migrants. The Supreme Court has granted birthright citizenshipto children born to lawful residents, however temporary. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). But this is not a case on point for the children of illegal immigrants.

Trump went on record in 2015 as saying he wished to end birthright citizenship by jus soli. Back in 1993, Sen. Harry Reid (D-Nev.) proposed the Immigration Stabilization Act, that would interpret that clause as not granting automatic citizenship to someone born in-country, lawful or not. When a conservative Republican (Sharron Angle) challenged him for reelection in 2010, he criticized her for proposing something similar. He succeeded in having his fellow Nevadans forget his earlier proposal, which in any event had died in committee.

Last year, then-Rep. Matt Gaetz (R-Fla.) introduced similar legislation – which met a similar fate, despite the considerable research he did.

Matt Gaetz had a problem, and Trump has the same problem. Too many people believe that “subject to the jurisdiction” means subject to American law, without diplomatic immunity. Judge Andrew P. Napolitano is one such person.

Current realities

American citizenship is obviously valuable – enough that several “birth tourism” operations have occasionally started in the United States. In 2020, Orange, California shut down a “birth tourism” motel that allegedly catered only to wealthy Chinese women. They would travel to the United States while pregnant and stay in this motel long enough to give birth. But it was not on account of the birthright citizenship angle that Orange acted. This motel, by offering extended stays, was in essence a boarding house, on land that was not zoned for it. Furthermore, the building violated several building, fire and safety codes. This begs the question of why those wealthy Chinese women would even consider staying in a dump like that! Are they, indeed, that desperate?

Nevertheless, birth tourism is considered immigration fraud – or was. If authorities don’t treat it as fraud now, they surely will under the Second Trump administration.

(At the time of the shutdown, ten pregnant women were staying in that hotel – conveniently stranded on account of coronavirus.)

In March of this year – before he dropped out of the Presidential race – President Biden appeared on Univision (Ooh-knee-vee-ZYOWN) Radio, and specifically a talk show whose title literally translates as The Good, the Bad, and the Ugly. On that program he actually said:

If they ended birthright citizenship, you and I wouldn’t be citizens!

BIDEN: "If they ended birthright citizenship, you and I wouldn't be citizens!" pic.twitter.com/9gNaLGxzil— RNC Research (@RNCResearch) March 21, 2024

If that were remotely true, he wouldn’t even be eligible for the office of President. To repeat: Trump has never sought to revoke the ancient Roman legal maxim of jus sanguinis.

Motives of foreign actors for exploiting birthright “citizens”

At least two entities have motives for exploiting the divided sympathies of “anchor babies” and their parents. First above all is the World Economic Forum. They have an obvious motive in seeing the United States become a socialist country, and taking a figurehead lead in the creation of a one-world polity. This will be the United Nations, but with its own taxing authority and military and intelligence apparatus. CNAV has no doubt that the WEF would love to see the United States subject to this sort of language:

All persons born on the planet Earth, and subject to the jurisdiction of the United Federation of Humankind, are citizens of the said Federation and of the nation-state wherein they reside.

Second is the People’s Republic of China. Recall what they call themselves in their own language: The Middle Kingdom. As in, the Middle Kingdom to Rule the World. Such has been their ambition since their original founding, thousands of years ago. They, too, would benefit from tame “citizens” voting to compromise American security and allow such things as:

• A social medium with a Chinese headquarters, and
• The buying-up by Chinese agents of vast tracts of American farmland.

How birthright citizenship might end

The only sure way to end birthright citizenship in the United States is by a clarifying amendment to the Constitution. Such an amendment could require a subject person to have at least one citizen parent at time of birth. Or it could simply restate the central holding of U.S. v. Wong Kim Ark as a requirement. Thus the parent(s) or guardian(s) would have to be lawful residents, gainfully employed, at time of subject person’s birth.

The other way is to rely on the current balance on the Supreme Court. To get this matter before the Supreme Court, Trump, or the Congress, should act to create a controversy. Let Congress legislate that the country will confer citizenship only on persons born to lawful, employed residents. Failing that, let Trump issue an executive order to similar effect.

As Kristen Welker confidently predicted, a legal challenge will arise. Various immigration “rights” organizations would be itching to file such a lawsuit. Then let the Justice Department, through the Solicitor General, argue from the start that birthright citizenship would extend no further than the situation of Wong Kim Ark.

The Liberals on the Supreme Court would, of course, vote to confer birthright citizenship on “all persons born.” But the Originalists would likely disagree. Those three astute men would do the same research Matt Gaetz and others have done. And the Moderates? They would shudder at having so many immigration cases waste the courts’ time. So they would vote with the Originalists.

Wild cards

In this analysis, two “wild cards” appear. One is Justice Amy Coney Barrett. The perspective of a young mother can be fraught with emotion – as has happened with some of her recent opinions and concurrences. (See, for example, Murthy v. Missouri.)

The second is the ages and infirmities of some of the Justices. Justices Clarence Thomas and Samuel A. Alito are both getting old – and in fact, Justice Thomas is the senior Justice. On the other hand, Justice Sonia Sotomayor is suffering from diabetes mellitus and requires constant medical monitoring. Donald Trump must exercise great care in appointing any replacements. He might not have to worry about the Senate. But he got bad advice from the Federalist Society as to the appointments of Justices Barrett and Brett Kavanaugh. He appointed Moderates where he should have appointed Originalists, and therefore Constitutional jurisprudence has fallen somewhat short. Trump can’t get this one wrong – for if he does, he’ll lose his entire vision of a proud and independent United States of America.