President Donald Trump is intensifying his hardline immigration rhetoric heading into the midterm elections, declaring that he wants to order the end of the constitutional right to citizenship for babies of non-citizens and undocumented immigrants born in the United States.
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Revoking birthright citizenship would lead to a court fight over whether the president has the unilateral ability to change an amendment to the Constitution. Most scholars think he can’t.
Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union in New York, said Tuesday said the Constitution is very clear.
“If you are born in the United States, you’re a citizen,” he said, adding that it was “outrageous that the president can think he can override constitutional guarantees by issuing an executive order.
Jadwat said the president has an obligation to uphold the Constitution. Trump can try to get Congress to pass a constitutional amendment, “but I don’t think they are anywhere close to getting that.”
“Obviously, even if he did, it would be subject to court challenge,” he added.
Asked by Axios about the legality of such an executive order, Trump said, “they’re saying I can do it just with an executive order”.
He added, “It’s ridiculous and it has to end.”
It’s unclear how quickly he would act on an executive order. The White House has yet to comment.
On Monday, Republican Senator Lindsey Graham said he would introduce legislation to support Trump’s plan to limit US citizenship to certain children born in the US. He did not provide any details or a timeline.
Pew Research Center found in a survey published two years ago that births to “unauthorised immigrants” were declining and accounted for about one in three births to foreign-born mothers in the US in 2014. About 275,000 babies were born to such parents in 2014, or about 7 percent of the 4 million births in the US that year, according to Pew estimates based on government data. That represented a decline from 330,000 in 2009, at the end of the recession.
The president also told Axios that the US is the “only country in the world where a person comes in, has a baby is essentially a citizen of the United States for 85 years with all of those benefits”, but several countries, including Canada, have birthright citizenship laws of varying degrees.
In a 2015 analysis, fact-checking website Politifact, found there were 33 countries, primarily in the Western Hemisphere, that allow those born within their borders to obtain citizenship.
What is the US’s birthright citizenship law?
The 14th Amendment was ratified in 1868 and guaranteed that “all persons born or naturalised in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside”. It was one of the amendments passed during the Reconstruction era that abolished slavery and gave rights to African Americans. The amendment was a rebuke to the Dred Scott decision of 1857, which said those descended from slaves could not be citizens.
The 14th Amendment has led to a number of legal challenges. In 1868, the Supreme Court ruled in United States v Wong Kim Ark that a child born to Chinese immigrants who were legal residents was entitled to birthright citizenship. According to legal scholars, the challenges often centre on the words “subject to the jurisdiction thereof”.
Martha S Jones, a professor of history at Johns Hopkins University and author of Birthright Citizens tweeted on Tuesday that, “We are facing a contest over what categories of persons are excluded from Birthright citizenship.”
She added that that final interpretation of the amendment rest with the Supreme Court.
1/ I’ll weigh in here to say a few things about this issue. The first is that this issue is not one that has been directly tested or addressed by our courts. And the final interpretation here rests with #SCOTUS. https://t.co/e1C1d2YjDQ
— Martha S. Jones, JD, PhD (@marthasjones_) October 30, 2018
Trump voiced his theory that birthright citizenship could be stripped during his campaign, when he described it as a “magnet for illegal immigration.” During a 2015 campaign stop in Florida, he said: “The birthright citizenship – the anchor baby – birthright citizenship, it’s over, not going to happen.”
Since being elected he has cracked down on immigration, including implementing a travel ban on nationals from six Muslim-majority countries. His administration has also implemented a “zero tolerance” policy at the US border. Trump was forced to roll back his administration’s practice of separating children from their families at the border after public outcry. Hundreds remain separated.
In the lead up to to next week’s midterm election, the US president has sought to energise his supporters and help Republicans keep control of Congress, stoking anxiety about a caravan of Central American migrants and refugees making its way to the US-Mexico border. The caravan is currently more than 1,200km away.
He is dispatching additional troops and saying he’ll set up tent cities for asylum seekers, moves his critics say are an overreaction and political stunt.