Trump is not right about the 14th Amendment
(originally posted 21.08.2015 on Google+)


(Disclaimer: I'm neither a lawyer nor an American. However I carefully researched the following claims and am pretty sure everything is factually correct, I'm not as sure as I usually am with my more technical focused posts. So I highly appreciate any corrections.)

It's preelection time in America, dominated by Donald Trump's populistic performances (besides Hillary's emailgate..). One of his key points is that he wants to stop the "anchor baby" "problem", caused by the fact that virtually any person born in the USA automatically receives citizenship, even when born to illegal immigrants.

I tripped over this blog post from Rob Graham. Usually I like his factual, non-ideological posts, but here he builds his conclusions over plain wrong claims. He basically argues that congress made a law with exceptions (children of ambassadors or foreign heads etc.) and this list could simply be added with children of illegal immigrants.

But this is plain wrong. Congress didn't define such a list.

The 14th amendment has the following wording:

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.

The corresponding law, 8 U.S. Code §1401(a) does no more than basically adopt this wording:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

The disputed formulation is "subject to the jurisdiction thereof" and the plain fact is that neither the constitution nor the coded law exactly state what is meant with it. This explanation was made by the Supreme Court in its "U.S. v. Wong Kim Ark" ruling from 1898.

In the real world, it's the State Department who handles the citizenship-by-birth cases (as a sidenote, the agency responsible for citizenship-by-naturalization is not the State Department but USCIS). And the way how the State Department interprets the law is documented in the FAM ("foreign affairs manual") documents. And, as you could expect it from a state based-on-law, the State Department just adopts the ruling from the Supreme Court:

“Subject to the Jurisdiction of the United States”: All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth.
(1) The U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization.
(2) The Court also concluded that: “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
http://www.state.gov/documents/organization/86755.pdf

These are the plain facts.

Donald Trump and his supporters obviously don't like this status quo. This is no big deal, things always change in democracies. The question is: how could they lawfully change it?

I see basically four possibilities:

1. Simply change State Department's interpretation of the law. Let them declare that children of illegal immigrants are no longer considered as "subject to the jurisdiction thereof". The good part for Trump is, that given he is elected as president, he could do this just with his presidential power. But how likely is it that such an action would stand before the Supreme Court? A president who simply reverses a widely respected and long-standing Supreme Court ruling? Nothing is impossible, but I think it's very unlikely that this would work out.

2. Let the Congress define "subject to the jurisdiction thereof". Of course it is possible that Congress establishes a law stating that illegal immigrants are no longer considered as "subject to the jurisdiction thereof". But again, how likely is it that this will pass the Supreme Court test? Is it really a likely successful strategy that Congress can just reverse a Supreme Court ruling?

3. The most obvious, but a strategy that hardly fits into the preelection time: Campaign for majorities to change the constitution. Good luck with it!

4. Try to provoke an overruling of the Supreme Court ruling. This could be done with attempts like from Texas or Arizona to refuse to issue regular birth certificates to children of undocumented parents.

For me, all of these four possibilities don't sound very realistic. But nobody knows.

What I also wonder is why there is so much worry about the babies of illegal immigrants (who will almost always grow up as Americans), but not about people with temporary visa, even with tourist visa. But this is a political question I guess ...