Q&A of the Day – The Exceptions to Birthright Citizenship
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s Entry: @brianmuddradio You said there were already exceptions to birthright citizenship. Never heard that before. What are they?
Bottom Line: Among the many hot topics during President Trump’s first week of his second administration was birthright citizenship. It’s a topic the president has spoken of reforming for quite some time and it’s an issue he addressed head on with his day 1 executive order seeking to end birthright citizenship unless at least one parent is legally established within the United States. In a Q&A last week covering the president’s executive order I had this to say:
<<At issue is the 14th Amendment’s Citizenship Clause.
- The Clause states: 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.
(President Trump’s) argument is that the language “jurisdiction thereof” invalidates the children of those lacking legal status of citizenship as they aren’t lawfully within a jurisdiction thereof.
I believe the approach by President Trump is both reasonable and well-presented providing it with the best chance of obtaining legal success. At the same time the battle is likely of the uphill variety. If this were a new issue it would be a lot easier for a court to side with Trump’s legal argument. An overarching issue, should a court rule in Trump’s favor, would be how to address those who’ve already been granted birthright citizenship. Courts often lean on precedent in controversial rulings. The established precedent is the status quo.>>
And right on cue we saw that indeed that was the case as a Reagan appointed judge in Seattle had this to say in issuing a stay on the executive order: I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order. While I’m not the least bit surprised by the ruling, is it blatantly unconditional? Not at all, the argument is far more nuanced than that I believe.
If the argument were blatantly unconstitutional that would imply that every person born on U.S. soil would be an American citizen period – end of story...would it not? And yet as I briefly mentioned last week that’s not at all the case. There are four existing exceptions to birthright citizenship that have been recognized by the United States Supreme Court:
- Children born to foreign diplomats
- Children born in outlying possessions such as American Samoa and Swains Island
- Children born to enemy invaders
- Children born to tribal families that owe direct allegiance to their tribe.
Therefore, I’d argue, and the Trump team going forward should if they hope to win on this issue, that with four existing exceptions – all of which have to do with a parent’s foreign status or heritage/allegiance - it’s completely consistent to say that if neither a father or mother retains legal status in this country – their primary allegiance is to the country in which they are citizens. It’s not a complicated point to establish. The way to legally fight precedent, or the status quo, is with other already, and superseding precedent. I believe it’s clearly displayed in the case of birthright citizenship and therefore is most certainly not “blatantly unconstitutional”.
Notably, a just released Center for Immigration Studies review of US births found that 7% of all births in the US, or approximately 250,000 last year, were to illegal immigrants- those in which both parents lack legal status. Again – overturning birthright citizenship as it’s been allowed to persist is an uphill battle, but it shouldn’t be a legally insurmountable one.