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| Breccan F. Thies / The Federalist |
‘Citizenship is not a commodity to be acquired through calculated exploitation and evasion of the immigration laws, such as by entering the United States on a nonimmigrant visa for the purpose of giving birth within the Nation’s borders.’
President Donald Trump signed two new executive orders to help rein in the birthplace citizenship crisis Thursday in the wake of a Supreme Court ruling that read automatic U.S. citizenship for illegal aliens into the Constitution.The Supreme Court ruled in June that any random foreigner has the right to American citizenship simply by being born in the country. That decision declared unconstitutional a day-one executive order from Trump correctly interpreting the 14th Amendment to stop the practice. Notably, both the executive and legislative branches are constitutional entities with their own responsibilities to interpret the Constitution. The president is not required to follow unconstitutional edicts from the Supreme Court, but the orders are structured to maintain consistency with the court’s Barbara ruling.
“United States citizenship is among the greatest inheritances the Nation can bestow,” one of the orders states. “It embodies a sacred bond between the American people and the Nation in which they live, and carries profound rights, privileges, and responsibilities reflective of the enduring allegiance of citizens to the United States and our Constitution.”
The first order, “Continuing to Protect the Meaning and Value of American Citizenship,” clarifies situations the president does not believe are covered by the high court’s ruling, including cases of children born to an “alien enemy,” such as the children of terrorists, namely those found to be members of a Foreign Terrorist Organization or Specially Designated Global Terrorist.
It is unclear how large that class is, but the order addressing alien enemies seems to signal a move toward a much more effective way to designate that a child does not obtain American citizenship: declaring ineligible children being born to noncitizens deemed to be invaders.
As the Federalist reported, not only did the Supreme Court’s Barbara decision not address the question of children born to invaders, the court does not have the jurisdiction to block executive branch action repelling an invasion. As Iowa Solicitor General Eric Wesson noted, Trump and Gov. Greg Abbott, R-Texas, have both declared an invasion at the southern border, which took place under the Biden administration and prior. Given that reality, those who flooded in and had children — anchor babies — acted as invaders and would have no right to citizenship for themselves or their children.
The new order also clarifies that the children of foreign government employees, like ambassadors and embassy workers, are not entitled to birthplace citizenship. Some diplomats have reportedly been obtaining citizenship for their children while they are posted to the United States. --->READ MORE HERE
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| Evelyn Hockstein/Reuters |
There’s no guarantee that Trump’s latest birthright citizenship orders will stand up in court, but they reflect a more serious effort to work within existing law while pushing its borders.
President Donald Trump issued two executive orders yesterday that aim to crack down on birth tourism and birthright citizenship. The orders represent Trump’s renewed effort to tackle these issues after the Supreme Court, in Trump v. Barbara, struck down a previous executive order denying citizenship to the children of transients and illegal aliens. Yesterday’s orders are more modestly and carefully crafted than the original Trump effort. Some of their provisions are fairly obviously within Trump’s powers; others will doubtless present contested legal questions. But whether or not the orders stand up entirely in court, they bear the hallmarks of lawyers having given real thought to the existing precedents.The broader of the two orders, “Continuing to Protect the Meaning and Value of American Citizenship,” seeks — as the White House fact sheet explains — to identify “certain categories of children of aliens who are not entitled to birthright citizenship consistent with historical exceptions to birthright citizenship recognized by the Supreme Court in Barbara.” In fact, it pushes the envelope of those categories.
The traditional categories recognized in Barbara, which were drawn from the Court’s decision in United States v. Wong Kim Ark (1898) and, in turn, from the 1866 congressional debates on the Citizenship Clause of the Fourteenth Amendment, exempted “the children of ambassadors and other representatives of foreign sovereigns, as well as those born in the alien nations of Indian tribes.” (Quotations omitted). The Native American tribes were given citizenship by statute a century ago, and Trump focuses only on the remaining categories. The new order thus includes the children of noncitizens when one or both parents are “ambassadors,” “persons employed by a foreign embassy or consulate who are nationals of that foreign country,” or other “persons employed by a foreign government in an official capacity.” So far, this is mostly uncontroversial.
More controversially, the order exempts three further categories. I haven’t yet dug far into either. One is the children of an “alien enemy,” defined by reference to designated categories of foreign terrorist organizations. This fits more naturally within the concept of the Wong Kim Ark category of the children of invading armies. It’s much narrower than misguided proposals, such as one from Senator Jim Banks (R., Ind.), to just redefine any child of an illegal alien as a child of “invaders.” Leaving aside the fact that Banks based his proposal on a one-justice opinion from Justice Brett Kavanaugh rather than on the majority opinion of the Court, this is word-gaming. The point of Congress and Wong Kim Ark recognizing an exception for the children of invading armies is that a marching foreign army has two characteristics: it is a declared arm of a foreign sovereign state, and wherever it marches, it de facto suspends the sovereignty of the United States over that portion of its own territory.
If you squint hard, you could make something like the recent Ceuta incident fit that definition: 60,000 people, most of them military-age men, all from the same country, moving en masse into a small portion of Spanish territory in a single day, leaving at least 80 people dead. But to say that you might be able to apply that definition in an extreme edge case is not the same as saying that every time you see a Guatemalan mowing a lawn or a Honduran picking grapes, you are witnessing the legal equivalent of the redcoats burning the White House in 1814.
Trump’s order, by focusing on the statutorily authorized designation of alien enemies, is working in the edge-case space. It’s premature to predict whether this will work, or even if anybody with standing is likely to challenge it (it’s not easy to find people willing to submit sworn declarations in court self-identifying as members of designated terrorist groups, unless you’ve been handing out business cards at a DSA convention). --->READ MORE HERE
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