Trump’s new immigration plan would require a constitutional amendment

by Russell's Rants

Originally published August 15, 2015


Donald Trump released a short policy paper on immigration this morning, reiterating his improbable plan to build a wall along the southern border and make Mexico pay for it. In interviews today Trump has also stated that all undocumented immigrants “have to go.” But his new policy paper is silent on the subject of such mass deportation of these 11 million people – except to say that the return of all “criminal aliens” is “[m]andatory.”

It is interesting to note that in his first, and only, position paper released to date, Trump, a billionaire real estate developer who brags about paying-off politicians, focuses exclusively on the least powerful and most insecure among us – those living and working here in the shadows without legal documentation.

Buried in Trumps’ policy paper is a shocking call to “[e]nd birthright citizenship.” Not surprisingly, there’s not much substance to this plank, except for him to say that “ ‘no sane country’ would give automatic citizenship to the children of illegal immigrants.” By that definition, the United States is not sane because the Citizenship Clause of the Fourteenth Amendment to the Constitution has required for almost 150 years that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof” be considered “citizens of the United States.”

Passed in aftermath of the Civil War, the Fourteenth Amendment aimed to end the disenfranchisement of freed slaves and ensure citizenship for all those born in this country without regard the status of their parents. One of the purposes of the Citizenship Clause of the Fourteenth Amendment was to overrule noxious ruling by the antebellum Supreme Court in Dred Scott in 1857, which prohibited both freed slaves and their descendants from ever becoming citizens.

Citizenship at birth means that if you’re born here, you’re a U.S. citizen. This is a type of American exceptionalism that distinguishes us from, say, Germany, which until recently bestowed citizenship only on those whose parents were German citizens or of “German ethnic origin.” American has never had, and does not now need, an ethnic purity test. Indeed, U.S. immigration law is based upon English common law that “a person’s status was vested at birth, and based upon place of birth.” In Latin, the concept is called jus soli.

Some conservatives have argued as of late that the Citizenship Clause’s requirement that those born here be “subject to the jurisdiction” of the United States excludes the American-born children of undocumented immigrants from citizenship. But this is a fanciful argument that has no basis in law.

All first year law students learn that the first and oldest basis for the exercise of personal jurisdiction is physical presence in the forum state.

In drafting the Fourteenth Amendment, those in Congress believed that the amendment conferred citizenship at the time of birth. The jurisdictional exception to citizenship was meant to address the the children of diplomats and the Native American population on reservations, who until the Indian Citizenship Act of 1924 were not considered to be either American citizens or under U.S. jurisdiction.

And while the Supreme Court has not directly addressed this new-fangled argument that American-born children of immigrants are not subject to U.S. jurisdiction, its past rulings favor birthright citizenship without exception for the parents’ immigrant status.

  • In the 1873 Slaughter-House Cases, the Supreme Court stated in dictum that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
  • In 1898, the Supreme Court in U.S. v. Wong Kim Ark directly ruled that a person born here of immigrant parents is an American citizen, at the time of his birth, by virtue of the Fourteenth Amendment – despite the fact that his parents were subjects of a foreign power at the time (though not in an official of diplomatic capacity). Skeptics point out that Mr. Kim’s parents were noted to be carrying on business in San Francisco and had “permanent domicil and residence in the United States.” The significance of these noted fact is that Mr. Kim’s parents were not diplomats. But neither were they legal residents. Indeed, under the Chinese Exclusion Act then in effect, they likely had the equivalent status of today’s undocumented immigrants.
  • And in the 1980’s, two Supreme Court cases, Plyer v. Doe (1982) and INS v. Rios-Pineda (1985) have noted the Citizenship Clause confers citizenship on those “born in the United States,” even if their parents are “resident aliens whose entry was unlawful” or even were illegally smuggled here.

A top appellate litigator has noted that any effort to abolish birthright citizenship other than by constitutional amendment to the Citizenship Clause of the Fourteenth Amendment would lead to Dred Scott II in the federal courts.

This means that appointments to the Supreme Court by the next president will be key to any constitutional re-interpretation of the Citizenship Clause, along with many other hot-button federal issues. No sane county would make Donald Trump that president.