Tag: illegal immigration

On the very day Donald Trump became president again, he signed an executive order prospectively eliminating birthright citizenship for children born to aliens unlawfully present in the United States.

Immediately, lawsuits were filed in a half-dozen jurisdictions across the country challenging this order.

The groups bringing these suits claim the order disrupts long-standing legal norms governing citizenship. Yet, in fact, Trump’s contention — that birthright citizenship is not possessed by children of illegal aliens under the “correct interpretation of the law” — is exactly right.

Birthright citizenship is conventionally understood to apply to any child born in the United States, regardless of the immigration status of that child’s parents. This view is based on the common law principle of jus soli (“right of soil”), which is said to be incorporated in the Citizenship Clause of the Fourteenth Amendment. This understanding of the Citizenship Clause, however, despite its prevalence in academia and political commentary, is based on a mistaken and incomplete reading of controlling Supreme Court precedent.

In fact, birthright citizenship, as provided for in the Citizenship Clause, as that clause has been authoritatively construed by the Supreme Court, is possessed only by children born in the United States to at least one parent who is lawfully residing in the United States.

Ratified in the aftermath of the Civil War with the aim of remedying the injustices of the Dred Scott decision, the Fourteenth Amendment granted citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof.” This latter phrase has been wrongly equated with “subject to the laws thereof,” and thus to entail that all persons born in the United States are U.S. citizens, with only a few narrow exceptions, such as children born to diplomats.

Yet the Supreme Court has construed the phrase “subject to the jurisdiction” more narrowly, most notably in seminal cases that have been taught — well or ill — in law schools ever since.

Keep reading

On the very day Donald Trump became president again, he signed an executive order prospectively eliminating birthright citizenship for children born to aliens unlawfully present in the United States.

Immediately, lawsuits were filed in a half-dozen jurisdictions across the country challenging this order.

The groups bringing these suits claim the order disrupts long-standing legal norms governing citizenship. Yet, in fact, Trump’s contention — that birthright citizenship is not possessed by children of illegal aliens under the “correct interpretation of the law” — is exactly right.

Birthright citizenship is conventionally understood to apply to any child born in the United States, regardless of the immigration status of that child’s parents. This view is based on the common law principle of jus soli (“right of soil”), which is said to be incorporated in the Citizenship Clause of the Fourteenth Amendment. This understanding of the Citizenship Clause, however, despite its prevalence in academia and political commentary, is based on a mistaken and incomplete reading of controlling Supreme Court precedent.

In fact, birthright citizenship, as provided for in the Citizenship Clause, as that clause has been authoritatively construed by the Supreme Court, is possessed only by children born in the United States to at least one parent who is lawfully residing in the United States.

Ratified in the aftermath of the Civil War with the aim of remedying the injustices of the Dred Scott decision, the Fourteenth Amendment granted citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof.” This latter phrase has been wrongly equated with “subject to the laws thereof,” and thus to entail that all persons born in the United States are U.S. citizens, with only a few narrow exceptions, such as children born to diplomats.

Yet the Supreme Court has construed the phrase “subject to the jurisdiction” more narrowly, most notably in seminal cases that have been taught — well or ill — in law schools ever since.

Keep reading