Ever since he announced his candidacy for president in June, Donald Trump has been setting the agenda for the rest of the field. And so, naturally, his call to bring an end to birthright citizenship for illegal immigrantswas all anybody could talk about last week.
On NBC’s Meet the Press on August 16, Trump said, “We’re going to keep the families together, but they have to go.” Here, he was addressing the issue of anchor babies — those born in the U.S. whose parents were illegal immigrants at the time.
Since the only basis for deporting a person is if he or she is not a citizen and is not here legally, then, Trump has raised the question: Does being born to illegal immigrant parents while geographically located in the U.S. automatically confer citizenship?
Supporters of birthright citizenship will often cite the 14th Amendment to the U.S. Constitution that guaranteed citizenship to freed slaves after the Civil War, which states, in part, “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.”
By its text, clearly, being born in the U.S. is not enough to confer citizenship. The person must also be “subject to the jurisdiction thereof.”
Opponents of birthright citizenship, such as constitutional scholar and radio talk show host Mark Levin and the Library of Law and Liberty’s Mark Pulliam, have noted that the reason for that is because the amendment was not intended to include Native Americans who did not owe allegiance to the U.S. And that, most importantly, the 14th Amendment does not automatically confer citizenship by default to those born in the U.S. if their parents are not citizens.
They quote the framer of the 14th Amendment, Sen. Jacob Howard (R-Mich.) who, at the time, explained the clause “is simply declaratory of what I regard as the law of the land already,” adding that, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers…”
And what was “the law of the land already”? Per Pulliam, the Civil Rights Act of 1866, which guaranteed citizenship to “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed…”
That, clearly, would exclude the children of citizens of foreign nations.
Later, in U.S. v. Wong Kim Ark (1898), the Supreme Court found that the child of legal immigrants was also guaranteed citizenship. One could argue whether this actually deviated from what was the “law of the land already” at the time of the adoption of the 14th Amendment, but clearly that case did not really address illegal immigrants, since that was not really a thing back then. So, let’s leave that aside.
Besides that, Congress is granted power under the Constitution’s Article 1, Section 8 to “establish a uniform rule of naturalization” and under the 14th Amendment’s Section 5 to enforce by legislation the provisions of that amendment.
So, Congress otherwise has the power to say who can be a part of the franchise. Later, Congress would confer citizenship to Native Americans, which required an act of Congress, since they were excluded by the text of the 14th Amendment.
Therefore, on the question of anchor babies, the primary source everyone should be looking at is the current statute enacted by Congress to answer the question.
Yet, 8 U.S. Code § 1401, “Nationals and citizens of United States at birth,” says, “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof,” repeating the exact same language of the 14th Amendment.
So, if the language of the 14th Amendment does not automatically confer citizenship to anchor babies, and Congress did not affirmatively grant citizenship in the statute to the children of illegal immigrants — which contains exactly the same language — then anchor babies cannot be U.S. citizens.
And they never were in the first place.
In ending birthright citizenship, then, there would not even be a question of stripping citizenship retroactively, since Congress never conferred it to begin with. Something to think about.