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It didn't take long for the litigation case to light up.
Within hours of his inauguration, nearly two dozen states sued President Donald Trump for rejecting his executive order Automatic citizenship For children born in the United States to parents who are here illegally.
different State prosecutors Those who sued have dismissed his actions as a flagrantly unlawful assault on the Constitution, while confidently assuring us that the President's order would be overturned in court under the plain meaning of the Fourteenth Amendment.
Not so fast.
As I explained Tuesday morning on Fox News, Trump has a credible and defensible case that the amendment was never intended to apply to people who violate the law by coming here fraudulently or illegally.
Sure, it could offer a great deal challenge For Trump in the courts. But it sparked a logical discussion worth having. Ultimately, it will be up to the U.S. Supreme Court to determine the parameters of what the framers of the Fourteenth Amendment intended.
Let's start with the text of the nationality clause itself:
“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 in which they reside.”
The phrase “subject to its jurisdiction” is at the heart of Trump’s justification for birthright citizenship. What does that mean?
As a duty-bound CEO of our nation Apply all lawsTrump interprets this constitutional text narrowly. This means that illegally present aliens are not “subject to the jurisdiction” of the United States because they are presumed to retain political allegiance to another sovereign as citizens of that foreign power.
Simply put, simply setting foot on U.S. soil does not necessarily constitute allegiance or “subjection” of an individual to full U.S. jurisdiction.
The legislative history of the Fourteenth Amendment supports this point. It was ratified after the Civil War in 1868. Its sole purpose was to grant citizenship and full rights to formerly enslaved people. There is little evidence to suggest that Congress and the states intend to grant citizenship to children of diplomats, temporary students, tourists, and illegal aliens.
While the truth is that everyone here must adhere to it United States law Under our principles of territorial jurisdiction, this is not the same as political jurisdiction. Senator Lyman Trumbull, who was a driving force behind the Fourteenth Amendment, specifically stated that the Citizenship Clause did not extend to individuals who remained subject to or owed allegiance to any foreign power.
Supporters of birthright citizenship Illegal immigrants The Supreme Court's 1898 ruling in… United States v. Wong (169 U.S. 649) It concerns a child who was born in the United States, but whose parents, originally from China, were here legally and permanently. The Supreme Court's decision revolved around this distinctive fact.
Judgment in Wong Do not support the proposition that citizenship is automatically granted to the children of parents who are here in the United States illegally. Their nationality derives from the homeland of their mother and father.
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More directly important are two other Supreme Court cases in which the justices clarified the original intent behind the Fourteenth Amendment. The qualifying phrase, “subject to its jurisdiction,” excludes citizens of foreign countries born in the United States (Massacre Cases, 83 US (16 Walls) 36, 1872; Elk v. Wilkins, 112 U.S. 94, 1884)
For a very long time, we have government Citizenship documents have been granted based on an understanding of the Fourteenth Amendment that is at best unclear, if not wrong. Congress could have made that clear, but it has consistently failed to do so.
With his executive order, President Trump has finally launched a controversial case that will now be decided in the courts. Lest we forget, the Supreme Court's primary function is to interpret the Constitution and resolve disputes like this.
Trump's critics are wrong to claim that he abuses power. As stated above, he correctly confirms this and refers the matter to judicial review.
This is precisely what the Founders intended when they built a unique government of checks and balances.
Predictions of Trump's defeat are – as usual – premature.
