Trump’s executive order on birthright citizenship is getting a lot of attention, as well it should. This is something he has been threatening for a long time, and those threats were often ignored because it is so clearly unconstitutional. I’ve written about this before.
The 14th amendment of the Constitution states:
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.
Seems pretty clear. The Supreme Court has interpreted it as well in US v Wong Kim Ark, finding that the 14th Amendment does guarantee citizenship by birth in the United States. But we are in an era when conservatives are hopeful that they can overturn precedent.
The executive order attempts to define the words “subject to the jurisdiction thereof.” This is what the executive order says about those words:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
It then states how it will be put into effect – birth certificates will no longer be considered proof of citizenship for anyone born 30 days or more after this order.
This is phenomenal. Congress hasn’t passed a law. This hasn’t even gone through a regulatory process. It just redefines the meaning of the Constitution by fiat.
How does one become a citizen? Birth in the United States is only one way. Naturalization – when an immigrant applies to become a citizen – is another. However, people born outside the United States can derive or acquire citizenship through parents. When I read this executive order, it reminded me of the laws relating to derivation and acquisition. Those laws are complex, looking at the marital status and citizenship of the parents, often requiring proof of certain periods of residence in the United States. This order makes some sort of hybrid derived citizenship if the father is a citizen, but also if the father is a lawful permanent resident. However, it’s not within the authority of the president to create law.
This is a clear overstep. It violates the Constitution, it sidesteps Congressional authority, and it doesn’t even follow basic administrative procedure. If DACA isn’t lawful, then neither is this. There have already been at least two lawsuits against this particular order.
My bigger concern is the message that this sends to people who are citizens by birth whose parents are undocumented. It sends the message that they are not valued by their country, that they are seen as less than others. They deserve better.