Lawyer: Donald Trump is wrong about “birthright citizenship”

The popularity and success of Donald Trump’s Presidential campaign never ceases to amaze me. He has literally proven all of the political pundits wrong on several predictions of his effort to secure the Republican nomination for President. Trump has made appearances all over the country drawing huge crowds and his poll numbers are in the double digits.

Until now, Donald Trump has been able to get away without providing a concrete outline of how he will tackle certain issues and one subject he has campaigned hardest on is ending illegal immigration. One aspect of illegal Mr. Trump has decided to address is the issue of birthright citizenship (aka anchor babies). The terms is attributed to the idea that pregnant foreign come to the U.S. to give birth so their babies can be conferred automatic American citizenship.

However, a constitutional lawyer named Ken Klukowski had an opportunity to read over Trump’s proposal and Breitbart News published an essay by Attorney Klukowski that takes the notion of birthright citizenship to task essentially stating that Donald Trump is wrong. The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal, Klukowski says.

Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

He also goes on to point out:

A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment.

In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens.

That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has.

So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum.

Based on what I have been able to find, Trump is basing much of his policy stances based on discussions he has had with Senator Jeff Sessions who has based much of his conclusions on manuscripts issued by the Center for Immigration Studies and its cousin groups NumbersUSA and the Federation for American Immigration Reform (FAIR). All three organizations are environmentalist front groups whose founder, John Tanton, was not only a Sierra Club member but is also is supported by pro-eugenics donations.

This is not to say the United States should not have any rules or take measures to prevent criminals or terrorists from entering or secure its border (it should). However, this is another instance where studies done by a group whose data has been found to be hyped and baseless finds its way into public policy and whose base philosophy and policy recommendations consider people as pollution.