Carol Swain Commentary: President Trump’s Ingenious Plan to Get the Supreme Court to Rule on the Constitutionality of Birthright Citizenship

by Dr. Carol M. Swain


On October 30, President Donald Trump announced plans to issue an executive order ending the practice of giving U.S. citizenship to children of illegal aliens. By taking this bold action, the President is poised to make history by forcing the U.S. Supreme Court to issue its first-ever clarification on whether the USA-born children of illegal aliens are entitled to birthright citizenship. Following the President’s lead, Senator Lindsey Graham expressed his support by stating his plans to file legislation addressing the matter.

Birthright citizenship comes from the 14th Amendment’s citizenship clause, which 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.” Although some scholars argue it would take a constitutional amendment to end the practice, others point to statutory language and the text of the 14th Amendment to argue that Congress has the authority to address the matter. Congress’s authority, they argue, is found in the language that implies anyone not subject to the jurisdiction of the United States is excluded from automatic citizenship. The “subject to the jurisdiction thereof” clause is understood to mean Indians, foreign diplomats, and soldiers.

Contextually and historically, the 14th Amendment was never meant to be a loophole entitling individuals from other countries to automatic citizenship. Adopted in 1868, the amendment was a corrective to an injustice against African slaves and American-born blacks who found themselves stripped of citizenship after the 1857 Dred Scott v. Sandford decision. It ruled that African slaves and their American-born descendants were not and could never become U.S. citizens.

Writing for the Tennessee Star, constitutional amendments expert Gregory Watson cites the 1952 Immigration and Nationality Act as a legal basis for clarifying the issue. Watson refers to “Section 202, Pub. L. No. 82-414, which, in part, reads “(3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject…”  Watson’s reference to Public Law 82-414 and the arguments of lawyers and scholars who believe that a proper congressional clarification of the “subject to the jurisdiction thereof” clause provides a legal basis for ending birthright citizenship. This issue is important. We had better get this clarified by the Supreme Court. It has real-life consequences.

Pew Research estimates that about 250,000 babies are born in the U.S. to parents residing in the country illegally. An estimated 36,000 additional babies are born to parents from around the world who come to the U.S. legally as part of the birth tourism trade. It is perfectly legal for pregnant women to travel to the U.S. for medical reasons, including childbirth. Note, though, that that child subsequently raised in the parent’s home country becomes a status symbol that can sponsor other members of the family for citizenship once he or she reaches age 18.

Millions of Americans first learned about birthright citizenship and mixed-status families when Elvira Arellano, a twice-deported Mexican mother with an American-born son named Saulito, defied deportation orders by seeking refuge in Adalberto United Methodist Church in South Side Chicago. Between August 2006 and August 2007, Arellano held press conferences and garnered headlines before she was eventually arrested and deported after she left the church for a speaking engagement. She returned to the U.S. in 2014 and joined the thousands using the magic words. She asked for asylum and while it was pending, she had a second child. In 2017, she was granted another year of U.S. residency. How Arellano’s case is resolved will have political implications because she is the poster child for those who argue that illegal alien parents should never face deportation.

Whether President Trump is successful or not at unilaterally ending the practice of birthright citizenship, he is certain to force a showdown over the matter. Public Law 82-414 and the legal analysis and research of Yale University Law Professor Peter Shuck and University of Pennsylvania Professor Rogers Smith in Citizens without Consent: Illegal Aliens and the American Polity (1985:5), suggest that the issue can be resolved without a constitutional amendment. Shuck and Roger wrote: “The Fourteen Amendment’s Citizenship Clause makes birthright citizenship for the children of illegal and temporary visitor aliens a matter of congressional choice rather than constitutional prescription.”

If President Trump or Congress acts to eliminate birthright citizenship, we can expect a ferocious partisan battle. Eventually, the U.S. Supreme Court will be forced to clarify the matter. The legitimacy of birthright citizenship for the off-spring of illegal aliens will be resolved once and for all. I believe the matter can be resolved without a constitutional amendment. We will soon see if Congress or the President has the courage to advance the matter.

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Dr. Carol M. Swain is the voice behind Be The People News—a blog and podcast dedicated to empowering individuals to think independently, understand their responsibility, and believe in their unique ability to make a difference in the world.  Facebook: Profcarolmswain, Twitter: @carolmswain, Website:  A version of the above article was previously published in The Epoch Times.













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