Newspaper column: Does the 14th Amendment require ‘birthright’ citizenship?

Following up on a stance taken during his election campaign President Donald Trump now says he will sign an executive order ending so-called “birthright” citizenship.

Trump told “Axios on HBO” he wants to “remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil.”

“How ridiculous, we’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” the president was quoted as saying. “It’s ridiculous. It’s ridiculous. And it has to end.”

As he did during the campaign Trump could not resist tweaking Nevada’s longtime senior Sen. Harry Reid.

“Harry Reid was right in 1993, before he and the Democrats went insane and started with the Open Borders (which brings massive Crime) ‘stuff.’ Don’t forget the nasty term Anchor Babies. I will keep our Country safe. This case will be settled by the United States Supreme Court!,” Trump wrote on Twitter.

In a 2015 position paper on immigration Trump said, “End birthright citizenship. This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said ‘no sane country’ would give automatic citizenship to the children of illegal immigrants.”

Of course, Reid’s 1993 speech on the floor of the Senate was a rare lapse into rational thought, which he now says was a mistake and argues, “Immigrants are the lifeblood of our nation.” As opposed to citizens?

But in 1993 Reid said, “If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee access to all public and social services this country provides. Now that’s a lot of services. Is it any wonder that two-thirds of the babies born at taxpayer expense at county run hospitals in Los Angeles are born to illegal alien mothers?”

The argument that children born on U.S. soil are automatically U.S. citizens is loosely grounded in the 14th Amendment, passed after the Civil War, which says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …”

The contention revolves around the phrase about being subject to U.S. jurisdiction.

In testimony before Congress in 2015, John C. Eastman, a law professor at Chapman University and founding director of the Claremont Institute Center for Constitutional Jurisprudence, explained the origin and meaning of the 14th Amendment citizenship clause.

He said the 1866 Civil Rights Act, from which the 14th Amendment was drafted, says, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

Eastman concludes, “As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country … remained a citizen or subject of the parents’ home country …”

Some say birthright citizenship is the result of the 1898 Supreme Court case of U.S. v. Wong Kim Ark in which the court ruled 5-4 that a child born in the U.S. of parents of Chinese descent is a citizen by virtue of birth under the 14th Amendment. The Chinese Exclusion Act barred citizenship for the Chinese, though the parents were legal permanent residents. There was no such thing as an illegal immigrant at the time.

In fact, American Indians born on U.S. soil were not deemed citizens until the Indian Citizenship Act was passed in 1924. As columnist Hans von Spakovsky has noted, “There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.”

While Trump likely doesn’t have the legal authority to issue an executive order ending birthright citizenship, Sen. Lindsay Graham of South Carolina has said he would introduce legislation to do so.

Either way, there is sure to be litigation all the way to the U.S. Supreme Court, which does have the authority to settle the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Legal battle over Trump refugee ban will be one to watch

That was quick.

With a stroke of his pen Obama agreed to allow 85,000 Syrian refugees into this country. With a stroke of his pen Trump cut that number to zero. Of course, more than 12,000 are probably already here.

Today refugees from the countries singled out by Trump in his executive order are already being held at airports on arrival from overseas and lawsuits have been filed.

Trump signs executive order.

Trump signs executive order.

Trump’s order suspends all refugees for 120 days and bars for 90 days the entry of any citizens from seven predominantly Muslim countries — Iraq, Syria, Libya, Somalia, Sudan, Iran and Yemen — even if they have valid visas. Trump said he intends to increase the vetting of certain foreigners and screen out potential “radical Islamic terrorists.”

When admissions are allowed to resume the order would “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality” — presumably Christians.

This has lawyers scrambling for precedents to cite to establish religious discrimination and question the constitutionality of the order.

The U.K.-based Guardian already has posted an article exploring the legal arguments that can be made and notes that the Supreme Court ruled Congress can make immigration rules that, if applied to citizens, would be unconstitutional.

In the 1890s, the newspaper relates, the high court upheld a ban on Chinese immigrants. In 1972, the court ruled the president could bar a Marxist from entry, but said the president needed reasons that were “facially legitimate and bona fide.”

This past June the Supreme Court deadlocked 4-4 and thus let stand a Texas court ruling that blocked an Obama executive order granting millions of illegal immigrants amnesty from deportation and access to work permits.

The order was called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and would have allowed illegal immigrants if they had been in the country at least five years and had not committed felonies or repeated misdemeanors. It also would have expanded his Deferred Action for Childhood Arrivals (DACA).

Trump at the time called Obama’s order “one of the most unconstitutional actions ever undertaken by a president.”

Now, we will see how his executive orders fare in court.