The term “pushing the envelope” has taken on a whole new meaning with President Trump’s announcement to remove birthright citizenship from babies born on U.S. soil. This would be the most dramatic and profound move yet by Mr. Trump’s hardline approach to illegal immigrants. His actions could trigger a legal battle that could reach the Supreme Court because it is illegal and contrary to the 14th Amendment.
President Trump’s assertion that the US is the only country in the world where illegal immigrants can have babies, and the babies are essentially U.S citizenship is abominable, ridiculous and a blatant lie. There are more than 30 countries around the world, most in the Western Hemisphere, including Canada that provide citizenship of varying degrees to children born in those countries regardless of their immigration status.
Indeed, this highly controversial move would certainly force the courts to decide on the legality of the 14th Amendment, which says: “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.”
Most immigration and constitutional scholars believe it is not within the purview of the president to change birthright citizenship based on the 14th Amendment.
The 14th Amendment was enacted in 1868 in the wake of the Civil War to guarantee that African- Americans who were former slaves and all persons born or naturalized in the United States had full citizenship rights. It reversed the 1857 decision in the Dred Scot vs Sandford case which stated those descended from slaves could not be citizens of the United States. Scott, a slave who had lived with his owner in a free state before returning to the slave state of Missouri argued that time spent in a free state entitled him to emancipation. However, the Supreme Court led by Chief Justice Roger Taney, (dubbed a satanic judge by abolitionists) ruled that no black, free or slave, could claim U.S. citizenship, and blacks could not petition the court for their freedom. To date, it is the most controversial decision made by the Supreme Court in the history of the United States.
It is clear that the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors and immigrants and therefore, it would be unconstitutional to change it without a two-thirds vote in both the House and the Senate and by three-fourths of the states. In other words, any change to any Amendments in the U.S. Constitution must be ratified by 67 votes in the Senate, 290 votes in the House and by 38 States.
The 14th Amendment has been routinely interpreted over the years to confer citizenship to people born in the United States whose parents are illegal immigrants, but this aspect of it was not tested or addressed by the court. There were a number of legal challenges to 14th Amendment. In 1868, the U.S. Supreme Court decision supported the Amendment in the case ‘The United States v Wong Kim Ark that a child born to Chinese immigrants who were legal residents in the U.S was entitled to birthright citizenship. At the time of Kin Ark’s birth, his parents were legally domiciled in the U.S. The emphasis here is a child born to legal immigrants and not to illegal immigrants.
However, it is important to mention that the 14th Amendment which deals with U.S. citizenship laws was founded on two traditional principles—Jus Soli, which is the right of the soil and Jus Sanguinis, a right of the blood. Under jus soli, a child’s citizenship is determined by birth in the U.S regardless of his/her parents’immigration status. Under jus sanguinis, the citizenship of a child does not depend on his or her place of birth, but instead would follow the status of a parent, specifically, the father or, in the case of an illegitimate birth, the mother. Removing citizenships from those born in the US is an affront to the 14th Amendment
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