President Trump, in an interview for Axios that will air as an HBO special, said he plans to sign an executive order that will end birthright citizenship. Trump has had this idea floating around in his dullard of a consciousness for a while, usually under the term “anchor baby.”
The term anchor baby comes from the argument positing that by the U.S. allowing the children of immigrants — who have entered the States through illegal means — to become citizens, encourages people to journey illegally to America: as they’d be allowed to stay due to their child being protected under constitutional rights as an American citizen.
Citizenship obtained through being born within the U.S. is maintained as law by way of the constitution. In fact, its the opening sentence of the 14th amendment: “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.” Thus, it surely must be the case that the President cannot reign above the very fabric of which the U.S. is materialised from?
Trumps legal point of view
Trumps former deputy national security adviser, Michael Anton, has argued in favour for Trump’s push-back on birthright citizenship, and through association the original intent of the 14th amendment itself, in two recent opinion pieces.
The 14th amendment begins by affirming that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” Isolate “subject to the jurisdiction thereof” from that sentence and let the battle for legal interpretation begin.
Anton postulates that the phrase “subject to the jurisdiction of” applies to only those children “not subject to a foreign power.” This interpretation would imply that a foreigner owes his/her national identity to whichever country “he is citizen or subject.” This reasoning also suggests that a child born to foreign parents will, on an innate level, lay their national identity with whicever nation their parents previously called home. Trump would argue that this logic encapsulates undocumented migrants rather than the children born to legalised immigrants.
Notice that Anton’s interpretation shackles a parents legal national identity to that of their children, as he states a “foreigner clearly owes allegiance to somebody else: the country to which he is a citizen or subject.” Given the fact that migrants of the undocumented category are just that, undocumented, its something of gymnastic reach to say they objectively belong to one nation over another.
Anton, in addition, correctly states history by saying that the birthright citizenship subsection initially acted “to settle forever the question of the citizenship status of freed slaves and of other free blacks,” yet goes further to opine that this should not be further interpreted to include “the children of illegal immigrants.”
Per contra, a birthright citizenship clause ostracising “the children of illegal immigrants” would not have buried the question of national settlement of freed slaves. Comparatively, it would’ve left many in a stateless limbo. As Warren Howard documented in his book American Slaves and the Federal Law, many slaves conducted themselves outside of American jurisdiction due to having been imported after slavery had been outlawed.
At the turn of the 14th amendment, therefore, there would’ve been thousands of children born to persons who would have legally been considered “illegal immigrants.”
Anton’s argument, moreover, ignores the very purpose of the 14th amendment – which would, of course, be Trumps intent if he ever attempts to sign away birthright citizenship.
It’s the majority opinion that the 14th amendment disavowed the Supreme Court’s amoral Dred Scott decision. That decision excluded blacks from American citizenship on the ground that farmers would’ve considered them as lesser class of being and not equivalent to themselves.
The 14th amendment was thus created to eliminate from American law the atrocious subjugation of groups subjectively considered as “subordinate and inferior.”
However, this is precisely the intent of the Trump administration: to reinstate in mainstream opinion the thought that one group can be less deserving of being American than another. This is another episode which offers empirical support for the claim that President Trump is anathema to the Constitution and the unwritten value system of the American people.