I am writing to rebut the opinion column “No, he cannot end birthright citizenship” by Marc Thiessen, and all other off-the-cuff remarks pertaining to President Trump’s proposed executive order.
Ordinarily, when legal professionals are asked a question, their response is “it depends” rather than making assumptions or broad generalities that may not apply. Although a lay person, Marc Thiessen assumes that President Trump is trying to “change” the 14th Amendment by executive order. This does not appear to be the case. Presupposing that White House counsel may know more about Constitutional Law than Mr. Thiessen, I would think they are contemplating an executive order that comports with the 14th Amendment and how it has been interpreted by the Supreme Court thus far. While there are scant cases that have touched upon the birthright issue, there are two cases that are universally cited, neither of which seem to support Mr. Thiessen’s position.
In the subject article, John Yoo, who is now a professor at UC Berkeley and previously Deputy Assistant U. S. Attorney General in the George W. Bush Administration, is called upon to render an opinion. He is the architect of the “Torture Memos” that purportedly gave legal legitimacy to “enhanced” interrogations (that I personally find repugnant) that were subsequently repudiated by President Obama. Given his illustrious status, you would think that he would cite a case that could not be so easily distinguished as not pertaining to the subject issues, i.e., babies born to illegal aliens on U.S. soil and tourism babies born to foreign nationals who travel to the U.S. specifically to have babies in the U.S. for citizenship purposes.
The case cited by John Yoo is United States v. Wong Kim Ark (1898). The facts of that case do not pertain to people who were illegal aliens or foreign nationals who just briefly touched down in the U.S. for the sole purpose of having their babies born here. The parents of Wong Kim Ark were legal permanent residents who were domiciled, and conducted a business in this country. Since there was a paucity of authority on the subject, the Supreme Court had to resort to English Common Law to interpret the meaning of the phrase “subject to the jurisdiction thereof.” Had Mr. Yoo read that case in depth, in my opinion, he would have found much that favors President Trump’s position. That case contains language that speaks to allegiance, obedience and amity of foreign parents to the sovereign of the country as being determinative of birthright citizenship of the subject baby. In other words, while some maxims may apply, the case cited is in no way the final word on the current issues.
The other authority on the subject is Elk v. Wilkins (1884). This case seems to fully support President Trump’s position in that it stands for the proposition that even if a person who is a foreign national submits to the jurisdiction of the U.S., the U.S. does not have to accept that person as a citizen, even if they were born on U.S. soil. In that case a Native American, who was born in the U.S. but was considered an alien, as a member of his tribe, who left his tribe to live among whites and submitted himself to the jurisdiction of the United States. In finding that he was not a citizen, the Supreme Court stated that it was not the will of the person that determines citizenship, but the acceptance by the United States. The court enumerated conditions that would militate against granting citizenship such as poverty, the inability to support oneself, the inability to live a civilized life, etc., as reasons to deny citizenship. While citizenship was granted to Native Americans in 1924, the principles articulated in that case very likely apply.
Additionally, the Supreme Court may find that there is a compelling state interest to abrogate birthright citizenship of babies born to foreign nationals who are here illegally, or those who owe their allegiance to other countries. It is now a major concern to protect our borders against people who want to unlawfully demand entry or force their will upon us by having a child, taking benefits at Americans’ expense, and engaging in chain migration. We have our own needy and homeless to care for. We don’t need more.
The president is very wise to raise the issue of birthright citizenship, because what we thought may have been settled law may not be settled at all as it pertains to illegals’ and tourists’ babies. I have no crystal ball on how the executive order will fare, but I do know it is headed to the Supreme Court, and the Court’s ruling is not necessarily a predictable outcome.