Is Trump right about the Fourteenth Amendment?

Opinion, Immigration, NakedLaw, Rights

He has big plans, a big following, and (who can deny it?) a big mouth, particularly when the subject turns to immigration.

Donald Trump has declared that he will end the nation’s illegal immigration problem by overturning birthright citizenship laws. But an interesting Constitutional argument has emerged on the subject, specifically in the interpretation of language contained in the Fourteenth Amendment. The Donald invokes the amendment in support of his proposals; meanwhile, his opponents use it as refutation. Who’s right?

Birthright citizenship and the “anchor baby” theory

Eliminating birthright citizenship would affect 300,000 to 400,000 children born to illegal immigrants each year, as well as those born to noncitizens, including Lawful Permanent Residents (green card holders), valid visa holders, refugees, and asylees, plus those here without documentation due to overstay.

One theory that’s been floated regarding how the idea of birthright citizenship can be exploited is contained in the controversial term anchor baby, referring to a child born to a noncitizen who wishes to secure citizenship or legal residency. It’s a hot-button issue among Presidential candidates from both parties—and Mr. Trump is leading the charge against it.

Immigration law expert Elizabeth Ricci doesn’t understand all the anchor baby fuss. “It would take the parent of an anchor baby at least 26 years to receive citizenship,” says Ricci. The child could not file a Form I-130 Petition for Alien Relative (i.e. a parent) until he turns 21, and then would have to prove that he would “experience extreme hardship” without his parent in the U.S.

Even in the unlikely event that these two criteria are met, it takes another five years for that parent to be eligible to file for citizenship. So to say that someone is having a child in the U.S. to secure her own citizenship doesn’t make sense.

But others admit that we can’t ignore common law

Using terms like “anchor baby” isn’t necessarily about facts, however, but more a matter of tone. There’s no denying that Trump’s un-politician-like presentation is the very thing that draws both his greatest advocates and his biggest critics. “The problem in the current political climate is that politicians are fearful of saying anything that will bring out the attack dogs—both in media and in various organized constituencies,” says common law advocate Richard Michael. “Trump doesn’t care, so he says what no one else is willing to say.”

And as far as illegal immigration and the Fourteenth Amendment go, “Trump may not articulate it like a lawyer, but he absolutely has a point,” says Michael.

“Briefly, the common law is that the children born on U.S. soil of parents who are citizens or on the land by permission are citizens,” Michael continues. “It excludes diplomats, who have special privileges, and invaders, who do not have permission.”

The problem is that the Constitution doesn’t define citizens. “The Fourteenth Amendment has been twisted to the liking of some activist courts to accomplish a policy that suits their views,” says Michael. “This is a modern invention.”

In layman’s terms, the common law is basically about what is innately right and wrong. “Even without being able to articulate why, you know that injuring someone is wrong,” says Michael. “In that same way, regular folks can sense that those who cross borders without permission with the intention to stay are invaders, even if not in the military sense. Many other countries certainly treat it that way.”

Even if they don’t treat immigrants as “invaders,” other Western-style democracies do indeed differ on the subject of birthright citizenship. In 2012, the Law Library of Congress investigated policies in France, Germany, Greece, Italy, Portugal, Spain and the U.K. Not one of those countries automatically give citizenship to children born to undocumented immigrant parents. San Diego sociologist John Skrentny told NPR in 2010 that United States-style birthright citizenship is an “anomaly” in most of the world.

So, then, does the Fourteenth Amendment support birthright citizenship, or not?

The Fourteenth Amendment reads as follows:

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.

The ultimate question is: What does “subject to jurisdiction thereof” mean? What was the intention of that phrase when the amendment was ratified in 1868?

Ricci is unequivocal. “Birthright citizenship is enshrined in the Fourteenth Amendment which, like it or not, applies to everyone,” says Ricci, “regardless of immigrant status.”

But in a post from July 2014, legal analyst Ken Klukowski likens the language of the Fourteenth Amendment to that of the Civil Rights Act of 1866—both were written in the same year. The Civil Rights Act grants American citizenship to those born in the U.S. and “not subject to any foreign power.” Hence, Klukowski believes the Fourteenth Amendment’s true intention was that, for a baby to be a citizen, his parents must be citizens, too.

For Trump—or anyone elected president—overturning birthright citizenship would require an act of Congress, and would certainly be enthusiastically challenged. Could it happen? Only time will tell.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

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