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Trump’s birthright citizenship proposal has Supreme Court challenges



trump migrant caravan rally
Donald Trump speaking about a migrant caravan in Mexico during an
October 27 campaign rally for the United States midterm

AP Photo/Jeff

  • President Donald Trump said he intends to pass an executive
    order that would end birthright citizenship to target immigrants.
  • Birthright citizenship is widely understood to be part of the
    14th Amendment and would take a new constitutional amendment or
    Supreme Court ruling to invalidate.
  • In three historic cases, the Supreme Court has interpreted
    the amendment broadly.

President Donald Trump claims he has a plan to stop the United
States from granting birthright citizenship
. But if he tries
to execute it, he’ll almost certainly have to put up a fight in
the Supreme Court.

Birthright citizenship is the right for anyone born in the US to
be automatically granted US citizenship. Trump wants to get rid
of it with an executive order, he told Axios on Tuesday,
but it’s widely understood by legal scholars to be enshrined in
the 14th Amendment of the US Constitution.

Here’s the first
section of the 14th Amendment
, which established the
right to birthright citizenship (emphasis added):

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.
No state
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

The Amendment was ratified in 1868, during the
Reconstruction Era. It overruled Dred Scott v. Sandford
(1857), one of the most disastrous cases in US history for
African-Americans, which held that the descendants of slaves from
Africa living in the US could not be US citizens.

Trump has brought up the idea of fighting birthright citizenship
before. In an August 2015 interview with
now-disgraced former Fox News host Bill O’Reilly
, he
said the 14th Amendment doesn’t apply to “anchor babies,” a
pejorative term used to describe children whose parents
entered the country illegally to have a child who would be
born in the US and granted US citizenship. Trump reiterated his anti-immigrant
message to Axios
, saying he wants to target “anchor babies”
and “chain migration” with the policy.

To get rid of birthright citizenship would mean that the United
States would have to pass a new amendment, or the Supreme Court
would have to interpret the 14th Amendment differently from the
way it has in the past.

But in case after case, the Supreme Court has interpreted the
14th Amendment broadly, making the conditions for non-citizenship
extremely narrow. Three cases in particular tell us how Trump
might fare if he brought his own argument to court.

trump ice event
Donald Trump speaking during an event to salute U.S. Immigration
and Customs Enforcement (ICE) officers and U.S. Customs and
Border Protection (CBP) agents in August.

AP Photo/Andrew Harnik

Ark, a cook working in San Francisco, was born in California to
non-citizen Chinese parents. He visited China in 1890 and was
detained upon his return to the US under the Chinese
Exclusion Act, one of the fiercest restrictions on free
immigration in US history.

The Chinese Exclusion Act prohibited the immigration of Chinese
laborers, and the US argued that Ark was Chinese, not a US
citizen, because he had Chinese parents. Ark challenged the US in
court, and the Supreme Court eventually ruled
that “citizenship by birth is established by the mere fact
of birth.” Ark was officially a US citizen, and the case set a
precedent for the citizenship of children born in the US to
foreign national parents.

Laurence Terrazas, also a US-born parent of immigrants, held
citizenship in both Mexico and the US. He enrolled at a Mexican
university in 1970, and
as part of his application
, he renounced his US citizenship
and swore “adherence, obedience, and submission to the law and
authorities of the Mexican Republic.” 

The State Department considered this a clear-cut case of giving
up US citizenship. But, according to an appeals court decision in
the case, Terrazas produced other forms where he
“[b]y taking this oath I did not consider that
I was relinquishing my rights as an American

Ultimately, the Supreme Court didn’t rule on
whether Terrazas had, in fact, renounced his
citizenship. However, the court did rule that US citizens
must to intend to renounce their citizenship in order to lose

“In establishing loss of citizenship, the Government must
prove an intent to surrender United States citizenship, not just
the voluntary commission of an expatriating act such as swearing
allegiance to a foreign nation,” Justice Byron White wrote
for the majority.

This case might present Trump’s most challenging potential
hurdle, finding that even non-citizen children still have

Plyler v. Doe struck down a Texas law that withheld
funding for schooling of children of immigrants living
in the US unlawfully. The last clause of the first section
of the 14th Amendment prohibits states from
denying “to any person within its jurisdiction the
equal protection of the laws.”

Even if those children aren’t citizens of the US, an
undocumented immigrant is still “a ‘person’ in any ordinary
sense of that term,” Justice William J. Brennan ruled for
the majority. Brennan further said that being undocumented does
not establish “a sufficient rational basis for denying them
benefits,” meaning that the state can’t use undocumented
status as a reason for discrimination

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