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President Trump resurrected a controversial but rarely tested legal issue when he announced his intention to issue a decree that would end the automatic granting of citizenship to those born in that country of no -citizens.
Legal experts have been discussing for years how the citizenship clause in the 14th Amendment to the Constitution should be interpreted, but most agree with the long-standing practice of granting citizenship to people born in the country. American soil.
The text of the amendment says: "All persons born or naturalized in the United States and subject to their jurisdiction are citizens of the United States and the state in which they reside."
Some lawyers argue that the phrase "and within their purview" appears to give the government leeway to limit this right, just as other amendments to the Constitution may be limited.
But the traditional view, from right to left, is that something more needs to be done to change the birthright granted to people born here.
"No matter that birth citizenship is a good idea, it is inscribed in the 14th Amendment and would therefore require another constitutional amendment to change," said Ilya Shapiro of the Libertarian Cato Institute.
(Ricky Carioti / The Washington Post)
"There is an active academic debate about whether simple legislation could change it with respect to illegal immigrants and tourists, but it does not matter, it's not something that can be done solely by the Action of the executive, "he said.
Trump said that he had been informed by the White House council office that he had the power to terminate citizenship.
"It has always been said that a constitutional amendment is needed. Guess what? Not you, "Trump told Axios in an interview scheduled to air as part of a new HBO series debuting this weekend.
When told that his point of view was disputed, Trump said, "You can do it with an act of Congress. But now, they say that I can do it simply with a decree. "
In the part of the interview that was published, it was not clear whether Trump would deny citizenship to a non-citizen's baby or just to the children of people who are illegally in the community. country.
The most quoted Supreme Court decision related to this issue is the 1898 affair United States c. Wong Kim Ark. The court ruled that a child born to legally resident Chinese immigrants was a US citizen at the birthright under the 14th Amendment.
The case of 1982, related but less direct, was Plyler v. Doe, which ruled that denying the admission of children of illegal immigrants to public schools would violate the equal protection clause of the 14th amendment.
Judge William Brennan, writing for the majority in the 5-to-4 decision, noted the wording of the Wong Kim Ark decision.
He stated that "no plausible distinction with regard to the" right "to the fourteenth amendment can be established between foreign residents whose entry into the United States is legal and resident foreigners whose 39, entry is illegal. "
But modern supreme courts have simply not been informed of the issue, so it is unclear how current judges would see it.
Some legal experts are wondering whether the 14th Amendment provides for such a broad mandate and states that the Citizenship Act has been drafted without any real contribution from Congress.
Retired Judge Richard Posner of the US Court of Appeals for the 7th Circuit said that the purpose of the 14th amendment was to grant citizenship to recently released slaves and that Congress could limit the granting of the citizenship.
Michael Anton, a former national security official under the Trump administration, presented the case in a Washington Post editorial:
"The notion that the simple fact of being born within the geographical limits of the United States automatically confers American citizenship is an absurdity – historical, constitutional, philosophical and practical," he wrote.
In 1995, the Office of the Legal Adviser of the Department of Justice adopted the position that citizenship could not be refused in the absence of a constitutional change. "Because the rule of citizenship acquired by birth in the United States is the law of the Constitution, it can not be changed by legislation, but only by an amendment of the Constitution," said Deputy Attorney General Walter Dellinger at the Congress.
He said that congressional attempts to deny citizenship would be unconstitutional. "We can not and must not try to solve the difficult problems posed by illegal immigration by denying citizenship to people who claim to be recognized as Americans based on the same constitutional foundation. than any citizen of birth, "he said.
Trump's comments sparked an immediate debate on the issue, just as he had done during the campaign when he had criticized what he called the "anchor babies."
On the liberal legal blog Balkinization, Gerard N. Magliocca, a law professor at Indiana University, who wrote on the subject, said the issue had been settled.
"The text of section one of the fourteenth amendment, as well as the background law, the debates in Congress and the practice that follows from it are clear on this point," he wrote. "There is no doubt that the White House can produce at least three accomplices to say that the executive order is legal, and then claim that legal experts are" divided "on this issue. It's a lie. "
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