Could Trump Bar Illegal Aliens From Birthright Citizenship?

Birthright citizenship seems rather cut and dry, does it not? The purpose of the passage in the 14th Amendment was explicitly to make sure that the former slaves and their children obtain immediate U.S. citizenship post-Civil War. But, it seemed to give anyone born here citizenship. Here’s how CNN is tackling it in what is supposed to be straight news (politics section), not opinion

Trump claims he can defy Constitution and end birthright citizenship

President Donald Trump offered a dramatic, if legally dubious, promise in a new interview to unilaterally end birthright citizenship, ratcheting up his hardline immigration rhetoric with a week to go before critical midterm elections.

Trump’s vow to end the right to citizenship for the children of non-citizens and unauthorized immigrants born on US soil came in an interview with Axios released Tuesday. Such a step would be regarded as an affront to the US Constitution, which was amended 150 years ago to include the words: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

But don’t call CNN biased. Regardless of their biases, is it legal?

(Daily Caller) In the U.S., birthright citizenship traces back to a clause in the 14th Amendment to the Constitution, passed just after the Civil War. The amendment’s citizenship clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The clause itself is based on the legal concept of jus soli, or citizenship by “right of soil,” which contrasts with jus sanguinis, or citizenship by familial descent. It has been widely taken to apply to anyone born within U.S. territorial jurisdiction regardless of the immigration status of their parents, with the notable exception of foreign diplomats.

In its 1898 ruling in the Wong Kim Ark case, the Supreme Court held that the children of non-citizens, when born on U.S. territory, are U.S. citizens by birth. However, the parents in question in the Wong Kim Ark case were legal immigrants, meaning the court did not directly address the status of children born to parents in the U.S. illegally.

That unanswered question gives Trump room to argue the citizenship clause has been too widely interpreted, according to Johns Hopkins University professor Martha Jones, an expert on birthright citizenship.

“A narrowly tailored EO [executive order] that rested on the view that the children of unauthorized immigrants are not subject to the jurisdiction of the US (in citizenship terms) and thus not citizens by virtue of Birthright is an argument that can be made,” Jones wrote Tuesday on Twitter.

It’s an interesting point. You see the part about children of foreign diplomats. They are excluded because they are not subject to the jurisdiction. It can be argued that those who arrive illegally are not subject, nor are those who overstay their visas.

Most countries in the world do not offer birthright citizenship — only 30 out of the world’s 194 nations automatically grant citizenship to children born to illegal immigrant parents, according to the Center for Immigration Studies.

No European country has birthright citizenship, and the global trend over the past 30 years has been to halt the practice. Notable countries that have ended birthright citizenship in recent decades include the U.K. in 1983, Australia in 1986, India in 1987 and Ireland in 2004.

It may seem like low hanging fruit at this time, but, ending it would stop a big incentive for illegals to come and have children, as we’ve seen them use their kids as shields, saying “the kids are citizens, so, I should not be deported and should be granted citizenship, too.” That said, a growing number of illegals are ones who show up at the border with the intention of being detained by federal authorities, at which point they expect to be released so they can disappear. Since we are taking custody of them at the border, even at places that are not designated as official crossings, it could be argued that they are now under U.S. jurisdiction.

So, anyone showing up needs to be turned back. No entry. Period. If Democrats cared about the illegals who are already here, especially the so-called Dreamers, they should support tough immigration controls like this. Make it really hard for illegals to come, turn those caught back, deport those caught in the U.S. immediately, and so forth. If they did, they could most likely find support for a one time earned amnesty for those already here.

The order would also apply to tourist birthing, where people come to the U.S. specifically to have their baby, giving it citizenship. Would an order be Constitutional? We’ll have to see if one is released, and, if so, what is it’s basis and legal reasoning. Then all the lawsuits.

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24 Responses to “Could Trump Bar Illegal Aliens From Birthright Citizenship?”

  1. Jethro says:

    This is just another cynical political stunt to influence the mid-term elections, much like dangerously sending 5200 US troops to the border. tRump is ‘Iniquity- Signaling’ his white nationalist base, lighting the fuse to get them to vote or further intimidate decent America by mob action.

    Normal Americans should ignore tRoller tRump. Ignore his EO and let it make its way through the courts where he’ll lose in even this SC, 9-0.

    The GOPhers’ real target is to gut Social Security, Medicare, Medicaid and pre-existing conditions to enable more tax cuts for the wealthy. This is their goal. Their attacks on minorities – immigrants, Jews, Blacks, LGBT – are distractions to get the media to ignore the GOP’s covert attacks on working class Americans.

    • formwiz says:

      How does someone ignore his EO? Most people are not on the border and are not in a position to do anything about it.

      Oh, yes, and it will be taken through the courts, regardless.


      Their attacks on minorities – immigrants, Jews, Blacks, LGBT – are distractions

      Which ones are there? Deplorables obey the laws . It’s Democrats that go around beating up people.

      Wotta maroon.

      • Jethro says:

        We’ve made clear that you’re full of shit, and forever, so not much more to say…

        • formwiz says:

          We? You mean your invisible friend actually agrees with you or just the voices in your head.

          Notice he doesn’t answer because he knows I speak truth on the second item and no one less that The Donald has said he’d like SCUS to rule on this.

          PS Did you know this whole issue came up out of a dissent in a SCUS case? This isn’t even part of an actual decision.

          • Jethro says:

            How’s the Mueller rape/abuse scandal progressing?

            Haven’t checked the Gateway Pudendum lately to see his “exclusive documents”.

            He scrubbed the “exclusive documents”. Ruh-roh.

    • david7134 says:

      What is dangerous about sending 5000 soldiers to the border?? Are you saying the caravan is dangerous and that the soldiers would be attacked. Are you even aware that every few months 10s of thousands of soldiers and their equipment moves to many locations in the US. Then please indicate how conservatives attack all these people when all we do is ignore them. You keep going on about SS and other enforced government programs. Explain the logic of not cashing in on mandatory programs, even if we don’t care for them.

    • Mangoldielocks says:

      lighting the fuse to get them to vote or further intimidate decent America by mob action.

      This is too funny. Mr. Jethro here is getting desperate. Throwing anything he can think of at the wall hoping something will stick as his slimy fingernails grip the edge of the swamp cesspool in hopes of finding any traction before he sinks below.

      Trump certainly is signaling but a MOB? The US military dispatched to the border in non military roles and as back ups to ICE to prevent the invasion of the USA funded by outside sources.

      ANYONE who believes this is not funded need only look at the dozens of tour buses arriving yesterday to bring these people to the border ahead of the military. Yeah Im sure that this 80 percent MEN, mostly young, young men marching for freedom is a legit flee from oppression.

      reason 40001 to not vote for a Democrat unless you want you job taken over by an MS=13 gang member or your sons beaten and murdered or your daughters raped by this gang of thugs cheered on by the Democratic MOB who has already shown they no longer believe in the RULE of LAW. Remember YOUR GUILTY UNTIL PROVEN INNOCENT now in the Democratic Party.

  2. Professor Hale says:

    Unlikely he can be successful at this.
    1. There is at least one Democratic party activist judge just waiting to issue an injunction against this. Just waiting to fill in the date. Not even waiting a plaintiff to bring it forward from a lower court.
    2. Without regard to the language in the Constitution, Courts will give weight to the defacto policy of the USA for the past 40 years. Trump appointed judges, not being left wing activists, will actually care about the law and know what it is and will affirm blocking Trump doing this by executive order.
    3. The right place to do this is through legislative action. And Congress is feckless on most issues.

    • formwiz says:

      Democrats know if the openly supported this, they’ be run out of office in a lot of places. Going with the ambiguities of the courts is what they like.


      Lindsey Graham is preparing a bill to end this nonsense and the finding ignores the legal status of the mother. Which might be safe for the Demos except for one small detail.

      Trump is filling vacancies on the courts as fast as he and M<Connell can and right now SCUS is his.

      I love it when a plan comes together.

    • david7134 says:

      I don’t think Trump in his wildest dreams would think that such a policy would survive judicial oversight. But, to low thinkers like Jeff, it would be horrible. It would firmly establish Trump as an anti-illegal guy and would begin the judicial process to the Supreme Court. The people who wrote this amendment seemed to think that it would not be applied to anyone except ex-slaves. Thus it has a fair chance of becoming law. Now, if law, the Dems would have to expend energy fighting it, if not it will go to the legislature and force people to take a stance.

  3. Jethro says:

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

    What part of that does tRump not understand? This is more clear than our 2nd Amendment.

    If the GOP wants to amend our Constitution they can start the process.

    Perhaps if he had taken 2nd grade civics he would have an idea.

    Amendment proposals may be adopted and sent to the states for ratification by either:
    A two-thirds (supermajority) vote of members present—if a quorum exists—in both the Senate and the House of Representatives of the United States Congress; or
    A two-thirds (supermajority) vote of a national convention called by Congress at the request of the legislatures of at least two-thirds (at present 34) of the states.

    To become an operative part of the Constitution, an amendment, whether proposed by Congress or a national constitutional convention, must be ratified by either:
    The legislatures of three-fourths (at present 38) of the states; or
    State ratifying conventions in three-fourths (at present 38) of the states.

    • david7134 says:

      All amendments to the Constitution are accompanied by notes as to the desired effects of the amendments. The writers of this amendment made statements to the effect that their purpose was only for people who were enslaved and that the policy was not to include people from other countries. Now Trump is a very intelligent guy, unlike you. He has discussed this with numerous lawyers. I really get the idea that you don’t understand much at all.

      • Jethro says:


        Thanks, that’s very interesting. What you’re saying is not to take the meaning of amendments literally, or in an originalist sense, but to divine what the writers meant from other contemporaneous documents.

        I certainly wouldn’t claim to be as smart as The Don, but the point remains that the writers of the 14th Amendment made an egregious error in their prose, by failing to write down what they meant.

        It would be an interesting exercise to wade through all the amendments and determine what they wrote compared to what we think they meant.

        • david7134 says:

          You are one of the stupidist, least informed people I know. The books are called the Federalist Papers. That gets you started, then you go to written precedents and other source material. Really why do you comment with such little knowledge.

        • formwiz says:

          The Lefties have never taken the 14th Amendment literally.


          And have used it as an excuse to do anything they want with it.

          You know what payback is.

          And those “other contemporaneous documents” are part of the document. Cute, but you want it both ways and you can’t have it without a majority of Lefty dishrags on the Court.

        • Dana says:

          Mr Bodine wrote:

          I certainly wouldn’t claim to be as smart as The Don, but the point remains that the writers of the 14th Amendment made an egregious error in their prose, by failing to write down what they meant.

          Did they make such an error? Some of the documentation makes it clear that the question of whether it was meant to apply to foreigners was in their minds, but by not including it the authors consciously chose, in the at the time most detailed constitutional amendment written, to omit it.

          Remember: when the Fourteenth Amendment was ratified, in 1868, we had no immigration laws; there was no one here illegally. We wanted unrestricted immigration, we welcomed unrestricted immigration — at least by white people — and it would have been a benefit to immigrants for their children born here to be citizens.

        • Dana says:

          Mr Bodine wrote:

          What you’re saying is not to take the meaning of amendments literally, or in an originalist sense, but to divine what the writers meant from other contemporaneous documents.

          If we are to take the First and Second Amendments literally, which I believe most conservatives do, then we must also take the Fourteenth Amendment literally. He who argues that the authors of the Fourteenth Amendment meant to exclude other people from its protection, and thus shouldn’t be taken literally, is arguing concomitantly that the authors of the Second Amendment didn’t really mean that the right to keep and bear arms shall not be infringed upon, but just subject to ‘common sense’ gun control.

    • formwiz says:

      Written to address freed slaves, not illegals whose jurisdiction is another country. And, as I noted earlier, grew out of a dissent in another case.

      No standing legally when push comes to shove.

  4. Dana says:

    As much as I hate to agree with Mr Bodine, the Fourteenth Amendment is clear and unambiguous: if you are born in the United States and are under our jurisdiction — which includes everyone within our borders except diplomats with immunity — you are automatically a citizen.

    There are arguments concerning what the authors of the amendment meant, however the problem isn’t what they might have meant, but what they actually wrote, and what was passed by Congress and ratified by the states. Legislative intent may be useful when the language of the law is ambiguous, but the words of the Fourteenth Amendment are quite clear.

    My article is here, on my site, and here on Red State. They’ve drawn a lot of opposition, but that doesn’t matter: I am still right.

  5. Mike-SMO says:

    Hmmm. Jethro Troll; I think I had that album.

    I suspect this effort will hinge on a decision of whether Illegal Aliens are, in fact,”subject to the jurisdiction” of the United States. I would argue that criminal invaders are not ubject to our legal system and therefore do not qualify. Perhaps the old term “outlaw” is appropriate for this population.

    Looks like there will be a dust storm from all the old history and legal books being dug out of the attics.

    • Dana says:

      Mr SMO wrote:

      I would argue that criminal invaders are not ubject to our legal system and therefore do not qualify.

      That’s one of the arguments being used, but they are, in fact, subject to our legal system. If they commit a crime, and we catch them, we can and do put them on trial, and punish them if they are convicted.

      If they were not subject to our jurisdiction, like diplomats with immunity, they could just shoot whomever they wanted, and the only recourse we would have is to deport them.

      The laws of every state require that all health care providers and facilities must register all live births the attend; that, in itself, subjects all children born here, regardless of to whom, to our legal jurisdiction.

      Furthermore, our immigration laws are clear: those caught here illegally have recourse to due process of law, and we even have special immigration courts and judges to process immigration disputes. We have, quite literally, stated that immigrants are under our jurisdiction while in the United States.

  6. Mangoldielocks says:

    This is Trump signaling those who would organize caravans and send them toward America. Nothing more. There is some ambiguity but even with a conservative court and the fact the 14th amendment was in regard to slaves born in the USA or more rightly children of freed slaves born in the USA it still has been upheld previously and therefore trump will lose any executive action.

    This is about a signal to organizers of caravans. If you keep this up I will stop granting you ANCHOR BABIES. I will throw every damn thing I have in my arsenal of political tactics at you. I will stop this somehow, someway.

    I will keep immigration front and center every day for the next six years of my presidency. This is a signal to George Soros and and the globalists. STop this insanity.

    thats is all this is about. He just signaled he might send 15,000 troops to the border. Another signal to the ORGANIZERS not those marching.

    • Jethro says:

      Nonsense. tRump is using these ploys to signal his white nationalist supporters. He is using our US military and attacks on our Constitution to Iniquity Signal his base.

      He is desperately worried about the mid-term elections, and rightly so.

      Do you have any non-Gateway Pudendum evidence to support your claims that 1) George Soros is financing the refugees, 2) tour buses are being used? Thanks.

    • Jethro says:

      Even tRump is now suggesting that George Soros and the globalist Jewish cabal is behind the refugee caravan.


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