Trump plans to end birthright citizenship - Unconstitutional

Post Reply New Topic

Former President Donald Trump on Tuesday pledged to challenge a long-standing interpretation of the U.S. Constitution in an attempt to end birthright citizenship for children of unauthorized immigrants if he defeats President Biden in the 2024 election.

If he secures a second presidential term, Trump said he would issue an executive order during his first day back at the White House in January 2025 instructing the federal government to deny citizenship to children with parents who are not American citizens or legal permanent residents.

Under a decades-long interpretation of the Constitution, children born on U.S. soil are automatically bestowed American citizenship, even if their parents are not themselves citizens or legally present in the country. Some immigration hardliners have long criticized the policy, saying it encourages parents to come to the U.S. illegally. While he was in the White House, Trump repeatedly floated the idea of challenging the interpretation, but never took action.

In his announcement Tuesday, Trump portrayed the move as part of a broader crackdown on unauthorized immigrants and asylum-seekers that he has promised if he returns to the White House. He has also vowed to launch the largest immigration roundup and deportation operation in U.S. history.

"My policy will choke off a major incentive for continued illegal immigration, deter more migrants from coming and encourage many of the aliens Joe Biden has unlawfully let into our country to go back to their home countries. They must go back," Trump said in a video message on Tuesday.

If Trump wins the 2024 presidential election and follows through on his promise, the move to end birthright citizenship for children of immigrants living in the U.S. without legal permission is all but certain to face significant legal challenges.

Is birthright citizenship in the Constitution
The 14th Amendment of the Constitution, adopted following the Civil War, declares that all "persons born or naturalized in the United States" are "citizens of the United States and of the State wherein they reside."

"Any executive action that a president might try to end birthright citizenship would be challenged in court and would be likely struck down as unconstitutional," said Stephen Yale-Loehr, an immigration law professor at Cornell University.

While the move would likely not pass legal muster, Yale-Loehr added, it could be a beneficial campaign tactic for Trump, especially during the Republican primary.

"I think it's pretty clear that, for political purposes, he thinks that this kind of announcement will appeal to his base. It shows that he has anti-immigration credentials. And most of his voters don't know or don't care about whether such an executive order would be legal," Yale-Loehr said

Supreme Court justices on Thursday expressed concerns about allowing President Donald Trump's radical reinterpretation of the Constitution's guarantee of birthright citizenship to go into effect while litigation continues.

In an unusual move, the court heard oral arguments on a series of Trump administration emergency requests seeking to limit the scope of nationwide injunctions that blocked the plan almost as soon as it was announced in January.

In more than two hours of oral argument, the justices vigorously debated various ways to limit the number of nationwide injunctions, but on the birthright citizenship issue specifically a majority appeared to think such an approach may have been justified, especially in cases brought by states.

Even if the Trump administration loses on its efforts to narrow injunctions in the birthright citizenship cases, any decision that sets new limits on such nationwide injunctions could help the administration implement other policies via executive actions, many of which have also been blocked by lower court judges.

There is also a chance the court could change course and quickly take up the merits of Trump’s birthright citizenship proposal, with several justices indicating the administration would lose. That would allow the court to quickly reach a definitive decision on the subject that would apply nationwide.

The argument as it related to birthright citizenship specifically centered on whether nationwide injunctions were justified for the 22 states that sued, led by New Jersey and Washington state in two separate cases. The question of what the justices could do with a third case brought by individual plaintiffs and immigrant rights groups CASA and the Asylum Seeker Advocacy Project was less clear.

In court Thursday, New Jersey Solicitor General Jeremy Feigenbaum told the justices that the states need a nationwide injunction because the imposition on each state caused by the plan could not be remedied by a state-specific injunction. He pointed out, for example, that people constantly move between states and there would be “chaos on the ground where people’s citizenship turns on and off when you cross state lines,” depending on how each state deals with the issue.

He noted that each year, New Jersey alone has 6,000 babies that were born elsewhere and the state would have to determine whether they were citizens to determine whether they are eligible for certain benefits.

Two justices in the court’s conservative majority, Neil Gorsuch and Amy Coney Barrett, both seemed sympathetic to those arguments.

"Why wouldn't they be entitled to an injunction of the scope of the one that has currently been entered?" Barrett said to Solicitor General D. John Sauer, who was arguing the case on behalf of the Trump administration.

Gorsuch pushed back when Sauer dismissed that argument on the grounds that it would justify nationwide injunctions in almost any case.

"What do you say, though, to the suggestion, General, that in this particular case, those patchwork problems for, frankly, the government as well as for plaintiffs, justify broader relief?" he asked.

Fellow conservative Justice Brett Kavanaugh also asked Sauer skeptical questions about the practical problems with blocking Trump's executive order in some parts of the country but not others.

"What do hospitals do with a newborn? What do states do with a newborn?" he asked.

Kavanaugh also wondered if the federal government would be able to come up with a workable plan in the 30 days the order gave for agencies to implement it.

"You think they can get it together in time?" he asked.

The three liberal justices all seemed solidly opposed to allowing the birthright plan to go into effect, even if they agreed that there should be some limitations on nationwide injunctions.

"Let's just assume you're dead wrong," Justice Elena Kagan told Sauer about the legality of Trump's order.

Justice Sonia Sotomayor, meanwhile, told Sauer the proposal violates four Supreme Court precedents. The alternative he proposed of allowing people to file class action lawsuits to vindicate their rights "makes no sense whatsoever," she added.

The justices have not yet agreed to take up the bigger legal question of whether Trump's plan comports with the Constitution's 14th Amendment, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The longstanding interpretation of the provision as understood by generations of Americans, including legal scholars on the left and right, is that anyone born on U.S. soil is an American citizen with a few minor exceptions, including people who are the children of diplomats.

As part of Trump's hard-line immigration policy, he wants to limit birthright citizenship to people who have at least one parent who is a U.S. citizen or is a permanent U.S. resident.