Hutt: Can Trump End Birthright Citizenship?
The first line of the 14th Amendment proudly proclaims,”All persons born…in the United States…are citizens of the United States.” Countless bipartisan experts, including Kellyanne Conway’s husband George Conway and former acting solicitor general Neal Katyal, have vehemently denounced any suggestion (like that advanced by the President) that birthright citizenship is not fundamental to America’s legal system. This position is not Katyal’s first high profile act of resistance against the Trump administration. You probably remember his serving as the lead attorney for the state of Hawaii in Trump v. Hawaii, more commonly known as the Muslim Ban case. And in that case, the Court upheld the constitutionality of the ban despite the outbursts of many experts including Katyal. With this precedent, how can we tell when the Court will legitimize seemingly unconstitutional immigration policies advanced by this administration?
Answering three questions will explain why we should anticipate an executive order ending birthright citizenship to be struck down by the Court while the Muslim Ban was not. To determine whether the Court will strike down one of Trump’s policies, we need to focus on whether Trump’s actions in the situation (not his words) are actually prohibited by the Law of the Land or are just simply morally reprehensible but fully within his authority as President of the United States
Question 1: Does he do what he says he will?
In the case of birthright citizenship, if an executive order actually stops recognizing birthright citizenship, then it would be an obvious infringement on the rights of those would-be citizens as proscribed by the words of the 14th amendment aforementioned. But in the case of the Muslim ban, Trump didn’t actually ban all Muslims from entering the country. Both green card holders and dual citizens were allowed to come and go as they pleased. It also did not apply to the largest Muslim majority nation (Indonesia) and even many large Muslim majority nations with a history of some citizens being radicalized: Saudi Arabia, Pakistan, Iraq, Turkey, etc. were not included. In fact, two non-Muslim majority countries (North Korea and Venezuela) were added to the list. The more the Trump administration amended the ban, the less it accomplished its unconstitutional goal. And an unconstitutional goal is not enough to subvert a potentially neutral policy that could be viewed as having a constitutional end, in the eyes of the Court, something a birthright citizenship ban could never be construed as having.
Question 2: What does Congress say?
When Paul Ryan first heard about Trump’s proposal for ending birthright citizenship, he handedly dismissed it, replying “You obviously cannot do that.” And in many Congressional acts, including the Civil Rights Act of 1866, Congress has reaffirmed the right to birthright citizenship, putting the President’s position on the issue on unstable ground. Compare that to the leniency Congress has given the President with the governing act in Trump v. Hawaii, the Immigration and Nationality Act (INA), in which Congress granted the President “broad discretion” in the Court’s words on “whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” And when the final decision was announced in that case, the leader of the Senate, Mitch McConnell paraded his support for Trump’s actions by insensitively tweeting a photo of his shaking Gorsuch’s hands as if to congratulate him for his job well done in ruling in favor of Trump’s policy. It is clear by the time the final decision was announced, the majority party in Congress was fully behind Trump unlike on the question of birthright citizenship.
Question 3: Is the right explicit or implicit within the words of the Constitution?
As said before, the 14th Amendment is clear on the issue of birthright citizenship. “All persons” means “ALL persons.” Even if the amendment does have the caveat of “subject to the jurisdiction thereof” the United States, the children of undocumented immigrants are subject to our laws. Therefore, they are subject to our jurisdiction. And the Supreme Court has clearly laid out precedents that the only exceptions to birthright citizenship are the children of diplomats (not subject to our laws) and those born behind enemy lines in a hostile invasion (not subject to our laws). There is simply no way around the plain words of the Constitution on this issue. It is true, with regard to the Muslim Ban case, the equal protection of the laws for religious observance is also an explicit right. But remember, Trump didn’t actually accomplish the original goal; he actually discriminated based on country of origin, which could only be argued to have implied protections in the Constitution at best, a significantly different situation than that posed by the question of birthright citizenship.
The Right likes to dismiss concerns against Trump’s policies as Trump Derangement Syndrome, an irrational fear of all things Trump. Trump’s announcement of this birthright citizenship policy a week before the midterms was a ploy to evoke liberal outrage in the hopes that Democrats would be viewed as unjustifiably angry and voted out of office as a result. To combat this characterization, we need to be more discerning as to when something will be struck down as blatantly unconstitutional and thus does not need further discussion and when something is just plain evil but maybe he could get away with it.