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Trump Targeting Birthright Citizenship With Executive Order – How it can affect you?

10/30/2018 Anant Goel

President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil.

Why it matters

This would be the most dramatic move yet in Trump's hard-line immigration campaign, this time targeting "anchor babies" and "chain migration." And it will set off another stand-off with the courts, as Trump’s power to do this through executive action is debatable to say the least.

The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment, which says:

  • "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."

Under current policy ─ not law, anyone born in the U.S. – regardless of whether they are delivered by a non-citizen or undocumented immigrant – is considered a citizen.  The interpretation has been blamed for so-called ‘birth tourism’ and ‘chain migration’.

Few immigration and constitutional scholars believe it is within the president's power to change birthright citizenship.

However, Conservatives have argued that:

·        The 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.

·         Constitution has been misapplied over the past 40 or so years.

·         The line "subject to the jurisdiction thereof" in 14th Amendment originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.

How Trump Executive Order may Work

Trump could, via executive order, "specify to federal agencies that the children of non-citizens are not citizens" simply because they were born on U.S. soil. 
 
But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be "unconstitutional."

Some Facts

·         Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants.

  • Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call "anchor babies" — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.
  • The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.

The bottom line: If Trump follows through on the executive order, "the courts would have to weigh in, in a way they haven't."

"What they are saying is, if you are born on U.S. soil subject to the jurisdiction of the United States – meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship.”

 

“If you are here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.”

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