The President Declares War on the 14th Amendment

Many of our clients were alarmed last week to hear about this administration’s latest assault on America’s immigrant population: modifying the 14th Amendment’s guarantee of birthright citizenship to those born on American soil to exclude children of undocumented immigrants. In an interview shown on HBO, President Trump declared that the 14th Amendment encourages people to enter the U.S. illegally so that their children will be U.S. citizens with “all of those benefits” that come with that coveted status. In his mind, removing that enticement will end illegal immigration. Along with the much-talked-about Border Wall, it is an overly simplistic solution to a complex problem that he has voiced numerous times since announcing his campaign in 2015. In an interview with Bill O’Reilly that year he claimed that the 14th Amendment could be abolished with a simple Act of Congress. However, his thinking has now “evolved” to a point where he believes that he can abolish or modify the Amendment with a simple Executive Order, a frightening prospect. According to the President “they’re saying” he can do this within the sphere of enforcing immigration laws. Who “they” are is unclear, as is the basis of their theory that a President can sign away Constitutional Amendments he doesn’t agree with.

The President seems to have forgotten the huge amount of litigation generated by his “Travel Ban” in 2017 and if he does sign such an Order there will be no shortage of challengers to stop its implementation. Such challenges would surely prevent implementation of the Order until at least after the President’s current term, so there is no immediate danger that anyone will lose their U.S. citizenship even if the Order is signed. Even Paul Ryan, the Republican Speaker of the House of Representatives has cast doubt on the President’s legal theory; in an interview with WVLK Radio in Kentucky soon after the HBO interview was broadcast he said quite firmly that “You cannot end birthright citizenship with an Executive Order”, calling the steps required “a lengthy process”.

In the unlikely event that the Supreme Court or Congress agrees that birthright citizenship should not extend to children of undocumented immigrants, or that the 14th Amendment can be abolished or modified with an Executive Order, no one on the President’s side of this argument has put forward any solutions to handle the inevitable administrative chaos in determining the citizenship status of every newborn in the country going forward. Will hospitals be required to verify a mother’s citizenship before providing pre or postnatal care? Will a child be a citizen if the parents are green card holders but not yet citizens? What about the (very common) scenario of a parent who derived citizenship from her own parents but does not have a Citizenship Certificate or passport? What if the parents have another lawful status like H1B or F1? If the President’s intention is to discourage undocumented immigration, why punish the children of documented immigrants and nonimmigrants? Perhaps the President envisages an approach similar to that of Communist China, where parents must seek a state-issued “birth permit” before conceiving a child?

The timing of this interview a week before the midterm elections leads us to believe that it is nothing but a rallying call for the President’s largely Republican, anti-immigrant base to come out and vote in larger than ever numbers. However, since we have received several calls on the issue here at Alexandre Law Firm, it is worth briefly explaining how such a well-established concept of American jurisprudence came into being and why it should not be undone by the stroke of a tyrant’s pen.

Before the 14th Amendment was ratified in 1868, there really was no law or regulation that definitively stated who was and who was not a citizen by virtue of birth in the U.S. It was not a foregone conclusion that birth in the United States meant citizenship of the United States. The infamously perverse 1857 Supreme Court decision in Dredd Scott v Sanford had established not only that African slaves and their children born here were NOT U.S. citizens but that they could never be, since “they had no rights which the white man was bound to respect”. Although the ratification of the 13th Amendment in 1865 ended slavery forever, the birthright citizenship issue remained an important issue for the descendants of African slaves. It was not until the Civil Rights Act of 1866 was passed and the 14th Amendment was ratified that it was finally established in law that

“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.”

In 1898 the Supreme Court was tasked with interpreting the Citizenship Clause of the 14th Amendment to determine the citizenship of a child born in San Francisco to non-citizen Chinese parents. In the landmark Wong Kim Ark v U.S. (1898) decision the Court chose to honor what it believed was the Reconstructionist spirit of the Amendment’s proponents, and their attempt to rectify previous injustices. Delivering the majority opinion Justice Gray stated that the 14th Amendment was not written for the purpose of limiting the class of people who could call themselves U.S. citizens but instead it

“…is declaratory in form, and enabling and extending in effect”.

After considering whether Wong Kim Ark was “subject to the jurisdiction” of the United States, the Court held that Congress meant only to exclude from that definition foreign diplomats or ministers, soldiers of an enemy occupying force, and certain Native Americans whose allegiance was to their tribe, not to the U.S. Wong Kim Ark WAS subject to U.S. jurisdiction and therefore a U.S. citizen because

“Every citizen or subject of another country while domiciled here is within the allegiance and the protection and consequently subject to the jurisdiction of the United States. His allegiance to the United States is direct and immediate…”

It is worth noting that this case was decided in an era of considerable anti-Chinese sentiment. The Chinese Exclusion Act of 1882 had been renewed in 1892, and would be again in 1902 and barred Chinese laborers (such as Ark and his parents) from entering the country because of unfounded, racially motivated fears about Chinese laborers stealing American jobs. (The Act was only repealed in 1943) The Supreme Court was able to see past that toxic mindset and provide the only correct, just interpretation of the 14th Amendment: that Wong Kim Ark was born in the United States and should be deemed a citizen of the United States. It is clear from the judgment that the Court believed that Congress wanted U.S. citizenship to pass to children of foreign nationals born here, regardless of how or when their parents arrived. This is the only interpretation that fits with the goals of Congress in the post Civil War Reconstructionist Era.

I believe that the anti-Chinese sentiment of that time is directly analogous to the current anti-immigrant sentiment frequently stoked by this President to drum up support among his followers. It provides an easy scapegoat for economic problems that the government has no real solutions for and no willpower to change.

I can only hope that the current Supreme Court or Congress can learn from our country’s history when and if they are asked to throw away over a century and a half of well-established jurisprudence and create decades of chaos for the sake of a despot’s reelection campaign.

By: Alexandre Law Firm, P.C.

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