Trump Insists He Can End Birthright Citizenship Through Executive Order

by Kim Boateng Posted on October 31st, 2018

Washington, D.C., USA : President Donald Trump insists he can stop birthright citizenship through an Executive Order. Trump said “some talented legal scholars” told him so. He said if President Obama could do DACA through Executive Order, he can end birthright citizenship the same way, though would prefer for Congress to act on it.

Retiring U.S. House Speaker Paul Ryan (R-WI) is pushing back against President Donald Trump’s threat to end birthright citizenship with an executive order.

Trump “obviously cannot do that,” Ryan said in an interview on Tuesday.

“You cannot end birthright citizenship with an executive order,” Ryan said. “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”

On Wednesday, Trump fired back at Ryan, whom the president thinks “should be “focusing on holding the majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about!”

Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about! Our new Republican Majority will work on this, Closing the Immigration Loopholes and Securing our Border! — Donald J. Trump (@realDonaldTrump)

Which countries grant unconditional birthright citizenship?

Donald Trump has said children born on American soil should not automatically get citizenship, claiming that the US is “the only country in world” to do this.

In the final days before the US midterm elections, President Donald Trump has called for doing away automatically granting an individual American citizenship if he or she is born within and subject to the jurisdiction of the US. This includes the children of non-citizens, whether documented or documented,

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States,” Trump claimed.

In fact, the US is one of a number of nations that automatically grant citizenship to those born on their soil, regardless of any other conditions. This right is commonly referred to as unconditional or unrestricted birthright citizenship, more formally known as jus soli (“law of soil”). Jus soli can also be conditional, and Trump on Wednesday sought to argue that this might be the case for the US as well, pointing to a sub-clause in the wording of the 14th Amendment of the US Constitution.

Birthright citizenship (jus soli) contrasts with blood citizenship, or jus sanguinis (“law of blood”), in which a child inherits citizenship from its parents.

What countries offer unconditional birthright citizenship?

Along with the US, 29 other countries currently bestow automatic citizenship to any individual born within its borders, excluding the children of foreign diplomats or of enemy forces occupying the country. They are:

Antigua and Barbuda, Argentina, Barbados, Belize, Brazil, Canada, Chad, Chile, Cuba, Dominica, Ecuador, El Salvador, Fiji, Grenada, Guatemala, Guyana, Honduras, Jamaica, Lesotho, Mexico, Pakistan, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Uruguay and Venezuela.

A high concentration of the countries are in the Americas or had ties to the British Empire

These countries either have legal systems derived from English common law, where the practice of jus soli developed, or instituted the citizenship measure in order to attract people to their countries, such as in Central and South American nations.

What countries offer conditional birthright citizenship?

Many countries grant citizenship to individuals born on their territory provided that certain criteria are met, such as one parent needing to be a citizen of the country or a legal resident. For instance, the constitution of the Dominican Republic explicitly rules out granting citizenship to the children of individuals residing illegally in the country. Malaysia’s constitution states that a child born on Malaysian soil must be born to permanent resident foreigners. Other countries offering conditional birthright citizenship include Australia, Colombia and Ireland.

Have any countries ever changed their laws birthright citizenship?

Yes, many countries have changed their laws, with most tending to introduce conditions that make birthright citizenship more restrictive. One key example is France, which until 1993 had unconditional birthright citizenship, unlike its European neighbors. Children born in France to foreign parents now must request French nationality at age 18 rather than receiving it at birth as they used to. Great Britain, considered the birthplace of birthright citizenship, also reformed its citizenship criteria in 1983, requiring that at least one parent be legally settled in the UK. Both India and Malta abolished their birthright citizenship.

Germany, however, has liberalized its citizenship laws slightly in recent years. Whereas citizenship used to be based exclusively on parents’ nationality, since 2000 the children of non-ethnic German parents may acquire citizenship at birth, if at least one of their parents has held permanent residence for at least 3 years and resided in Germany for at least 8 years.

The Origins of Birthright Citizenship

Its purpose 150 years ago was to incorporate former slaves into the nation.

Birthright citizenship just might be, former slaves believed, the safeguard they needed. In the decades before the Civil War, in an era when a remedy like the Fourteenth Amendment was hard to imagine, free black Americans embraced the view that they were citizens by virtue of having been born on U.S. soil. It was a lofty claim, especially because the Constitution was largely silent on the matter of who was a citizen and who was not. But for those who were descended from bondspeople, their circumstances were dire. Law and policy appeared to be conspiring against them, aimed directly at their tentative claims to belonging to the nation. Colonization societies organized to entice former slaves to migrate away, to Canada, the Caribbean, or Liberia in West Africa. Black laws restricted everyday life—work, travel, worship—to such a degree that black men and women felt squeezed out and many considered self-deportation.

In the U.S., birthright citizenship begins here, in the struggles of the marginalized and the despised to make this nation their own even as so many claimed that when it came to rights, it was a white man’s country. Most notorious among such denials of black citizenship was the U.S. Supreme Court’s 1857 decision in Scott v. Sandford, often referred to as the Dred Scott case. But African Americans saw Chief Justice Roger B. Taney and his decision coming from years away. They had encountered his view—that black people had no rights that white men were bound to respect—in Congress and state courts, in newspaper columns and political conventions. They denounced Taney and the high court, gathering in meeting halls and churches to decry the denial of their birthright. And they never deferred to it. Taney’s decision was another round in a struggle that would take them to the Civil War and beyond.

The 1868 ratification of the Fourteenth Amendment, especially its birthright-citizenship provision, was the culmination of a long struggle, rather than a newfangled postwar innovation. Black Americans had defined its necessity, set forth its terms, persisted even in the face of highly placed doubters, and then served up to the Reconstruction-era Congress an idea whose time had come. The Thirteenth Amendment made millions of enslaved people irretrievable and constitutionally free. But it was the Fourteenth Amendment that made them citizens, and with its ratification, the terms of citizenship were transformed for all those born in the U.S., setting in place a regime that persists until the present day. It is the very regime to which many Americans owe their sense of sureness when it comes to national belonging.

It might be easy to forget the origins of birthright citizenship. In many of our lives, it was conferred silently, without ceremony or much paperwork. We might assume it was always this way. It turns out that the quintessentially American story is not one about how it has always been this way. Instead, it is one about struggle—about how our democracy has been made to an important degree by people, like former slaves, who helped build the nation and asked in turn to be full members of it. It is a story about how people largely relegated to the margins make their way to the center—fitfully, unevenly, and not without opposition. Still, their striving, their quest, their insistence that citizenship is a two-way street and a bargain, rather than a gift or a privilege, is the legacy left to us by former slaves who saw themselves as belonging by virtue of birthright long before most others did.

In 2018, we find ourselves once again embroiled in a debate over citizenship, over who belongs, who is in and who is out. And the Fourteenth Amendment, a constitutional innovation that embraced former slaves as citizens, is now wielded by some as a weapon, held up as a barrier, and otherwise used to deny admission to those who have devoted lives and work to this nation, but always under a shroud of uncertainty. Some would undo the amendment’s birthright provision altogether, substituting for it regimes of blood—with belonging dependent upon who one’s parents were or were not—or of affirmation, in which only those willing to pledge themselves to the nation may join it.

What these proposals overlook is how firmly birthright citizenship is rooted in the heart of our democracy. Its purpose 150 years ago was to incorporate former slaves into the nation, regardless of their race or their status as one-time bondspeople. Birth was the great equalizer. And since its ratification, the amendment has served to gently arbitrate national belonging, ensuring that no arbitrary criteria—religion, race, descent, or political affiliation—can be wielded to deny citizenship. All those born here are citizens. And in a nation that has throughout its history struggled with recurring bouts of xenophobia, racism, bigotry, and more, these views have never determined who could be a citizen—even as they certainly shaped the quality of that citizenship for many Americans. As citizens, we are guaranteed a place, even as it has sometimes been a place to stay and to fight.

President Donald Trump, and legislators like Senator Lindsey Graham, have proposed changes to the birthright-citizenship regime. Likely such changes hinge on what is a phrase in the Fourteenth Amendment whose meaning is not clear on its face. Its authors carved out an exception to birthright for those said to be exempt from the jurisdiction of the United States. What did 19th-century lawmakers have in mind here? Certainly, they intended to exclude from birthright the children of foreign diplomats and occupying armies even when born in the U.S. Native Americans, members of their own sovereign nations, were also excluded. Some later claimed that this clause functioned to render the U.S.-born children of Chinese immigrants noncitizens. The U.S. Supreme Court said no in the 1898 case of U.S. v. Wong Kim Ark. Wong was a citizen, even as his parents were not. Today, the argument has been made that Wong’s case differed from that of today’s children of undocumented immigrants. There is no direct precedent here in U.S. law, and this tiny clause is where people like Trump and Graham may hang their hats.

Should either the president or Congress proceed with new interpretations of the Fourteenth Amendment, it will be left to the nation’s courts to resolve the constitutional questions that their novel interpretations of the amendment, or their wholesale abrogation of it, will present. When they do so, they must first take on history, a history in which a constitutional amendment was won by people whose often unrequited labor had built the nation. To limit or repeal the Fourteenth Amendment is to reject its democratic spirit, a spirit of expansive inclusion free of racism, anti-Semitism, political cronyism, or other narrowing prejudices. They will tell us that they possess, in a constitutional sense, the authority to do so, at will. The courts may affirm this. They may not. The lessons to be derived from the struggle black Americans waged 150 years ago concern their refusal to defer and an unwillingness to fold. Their ultimate victory came at great cost—the Civil War cost the United States three-quarters of a million lives, and almost its very existence. The victory they won was secured, in part, through the terms of the very Fourteenth Amendment that is under assault today. They would, I think, urge us to persist.

 

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Kim Boateng

Kim Boateng

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