According to US media Axios reported yesterday Trump hopes to end the "born citizenship" which is to cancel the right of non-US citizens and illegal immigrant children born in the United States to automatically obtain US citizenship. In terms of operation Trump believes that it can be achieved by signing an administrative order without the need to amend the constitution.
The American legal community once thought that this was an "unfinishable task" for Trump but it did not prevent Members from knowing the difficulties. With Trump's suggestion in the interview as the starting point the supporters who end the "born citizenship" have become more and more fierce in attacking the current US immigration policy.
What is “born citizenship”?
"Birth Citizenship" also known as the right to citizenship was written into the US Constitution as the 14th Amendment in 1868 mainly to protect the equal rights of American slaves after the civil war. Its specific expression is
All persons born or naturalized in the United States and accepting their jurisdiction are citizens of the United States and the state in which they reside.
The “born citizenship” was written into the constitutional amendment and also has its profound historical origins. In 1857 the differences in slavery in the United States became fierce. The black slave Dred Scott demanded that the case of freedom be the vane of the political trend of the whole country. Some even thought that the case was one of the key reasons for the American civil war.
In the end the Supreme Court sentenced Scott to lose. In the majority opinion written by the Chief Justice of the Federal Supreme Court Roger Taney even that even if Scott is free he is not likely to become a US citizen directly denying the citizenship of black people.
After the end of the American Civil War the United States Congress passed the 1866 Civil Rights Act in 1866 which clearly stated that including the liberated black slaves "all but the untaxed Indians were born in the United States and not any foreign forces. People are all American citizens.
Subsequently Republican Senator Jacob Merrit Howard proposed the 14th Amendment to prevent the bill from being abolished by future Congress and continue to ignore the rights of blacks and other minorities. In 1868 after two years of efforts by the legislature the amendment was finally passed.
Supporter voice
In the eyes of Trump and his supporters “born citizenship” is a major loophole in the US immigration system and it is time to make a comprehensive immigration policy reform to fix the loopholes.
After Trump’s idea was raised South Carolina’s Senate Lindsey Graham said yesterday that there was finally a president in the history of the United States who was willing to reform the “absurd” policy of “born citizenship”. He himself is highly supportive and intends to submit a draft law on this.
Graham believes that "born citizenship" not only becomes a "magnet" for illegal immigrants to flock to the United States but also makes the United States a "non-mainstream" in the developed world. This policy is the time to end.
Texas Senator Ted Cruz also supports this idea but how the Trump administration achieves its goals remains a big problem. He mentioned yesterday
Some legal scholars believe that this requires a new constitutional amendment to be implemented while others believe that it can be done through existing legal channels.
In my opinion no matter which method is used it will be challenged by the court so the court will decide the reasonable mechanism.
But from a policy perspective it is common sense to end "born citizenship."
Cruz said that as to whether the Trump executive order can be legally valid he still needs to study it carefully. He has not yet been exposed to specific situations.
Trump's election method?
In the eyes of many opponents "born citizenship" is the unquestioned right conferred by the US Constitution. Trump’s controversy on the coming of the US midterm election on November 6th is just another means for him to gain an advantage for the Republican Party.
Beto O'Rourke a Democratic candidate who competes with Cruz for Senator Texas said he is firmly opposed to the abolition of "born citizenship" which is Trump's practice of using the fear of the people to achieve political interests before the midterm elections.
O'Rourke mentioned in the MSNBC show on Tuesday night that Trump's "trying to stir up suspicion and fear" is very funny when immigrants are still far from the US-Mexico border.
Gilberto Hinojosa chairman of the Texas Democratic Party also said
If you were born in the United States you are an American. That's the truth!
This is just another desperate attempt by Trump to try to split society and stir up fear.
In addition to the opposition of the Democrats the opposition within the Republican Party is also quite loud. According to Politico Paul Ryan the Speaker of the House of Representatives regarded as the "soul character" of the Republican Party said that Trump could not end "born citizenship" with just one administrative order. "It is obviously impossible to do so."
Ryan said
As a conservative I firmly believe that I should follow the concise statement in the Constitution. In this matter the 14th Amendment is very clear and (if it is to be revised) will involve a very very long process of constitutional amendment.
Trump can really abolish it?
So far 30 countries including Canada and Mexico have recognized “born citizenship” but mainly concentrated in North and South America.
Trump could not abolish it by administrative order which is basically a consensus. The New York Times quoted legal experts as saying that Trump’s idea violated the consensus of the legal profession. Fox News mentioned that if Trump insists on promoting the release of this executive order it will be difficult for the court.
From the point of view of the 11 legal experts cited by Vox none of them think that Trump can achieve the goal. They generally believe that administrative orders cannot interfere with constitutional amendments. This is beyond doubt.
However there are also points of view that although Trump cannot intervene in the Constitution he can change the interpretation of the text in the 14th Amendment to achieve his goal.
Michael Anton a former Trump team national security official and now a lecturer at Hillsdale College mentioned in the column of the Washington Post in July this year that the first sentence of the 14th Amendment The wording of its jurisdiction is actually flawed.
Anton explained that if this refers to the existence of US citizenship or permanent residency then the right to automatically obtain citizenship when the children born to the registered parents are born in the United States can be rejected.
It is only from the reality that the US court has never ruled this way. In the interpretation of external consensus “accepting its jurisdiction” covers all people in the United States except diplomats.