Thread: Could Trump Really Change Birthright Rules?

http://www.cnn.com/2015/08/18/opinio...ent/index.html

Could Trump really change birthright rules?

By Danny Cevallos, CNN Legal Analyst

Updated 8:29 AM ET, Wed August 19, 2015

Story highlights

Donald Trump policy paper calls for end to birthright citizenship
Danny Cevallos: Don't think the Constitution can't change

"Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author. "

(CNN)Republican frontrunner Donald Trump recently said he would overturn a law that grants citizenship to people born in the U.S.

It's a statement that has a lot of people wondering: Can he even do that?

We wish we had an easy answer for you, but as with many legal questions, the answer is more complicated than it first appears. Here is why:

Most people assume that automatic citizenship conferred upon those born in the United States has always been a constitutional, and therefore immutable, right. Some are now suggesting that's not the case.

On one side, supporters of birthright citizenship argue it was established by the 14th Amendment to the Constitution, and settled by the Supreme Court in 1898, when it held that children born in the United States, even to parents not eligible to become citizens, were nonetheless citizens themselves under that amendment.

The language of the 14th Amendment by itself seems unambiguous:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

But let's deconstruct that clause: Anyone [Born Here], plus ["Subject to Jurisdiction Thereof"]. The "being born here" part is clear, but what about the additional requirement of being "subject to jurisdiction [of the U.S.]"?

That jurisdictional requirement of the citizenship clause is something you might just read over -- maybe because you got the gist of it at the "born" part of the clause, and just stopped reading. But it's there.

What exactly was the meaning of the jurisdiction clause in 1868 when the 14th Amendment was ratified?

Does it just mean that the baby has to be born in a place that is "subject to federal jurisdiction"? If so, isn't that already covered ... by the part about being born in the U.S.?

Does it instead mean the baby is subject to federal jurisdiction in the sense that the baby must abide by federal laws, like those prohibiting mail fraud or bank robbery? Saying out loud that babies must obey federal law seems just a bit unnecessary -- or insane.

Many scholars point to that "jurisdiction" part of the citizenship clause, together with its history, and contemporary law as proof that citizenship is not a constitutional birthright, but something that the government can either giveth, or taketh away.

Legal analyst Ken Klukowski compares the language of the Civil Rights Act of 1866 with the 14th Amendment, which was written the same year. The former grants American citizenship -- to all persons born in the United States, and not "subject to any foreign power." Klukowski argues that this is proof that the intent of the 14th Amendment was to require that you not only be born here, but that your parents were citizens too.

Reading legislative intent from hundreds of years ago is always tricky, but there is some modern support for this position.

For example, current immigration rules provide that a child born to a foreign diplomat on U.S. soil is not a citizen, because the baby is not "subject to the jurisdiction" of the United States. Laws like that, you may well think, should be automatically "trumped" by a Constitution that unconditionally guarantees birthright citizenship.

As for the Supreme Court decisions recognizing birthright citizenship, high court decisions are the law of the land, until an act of Congress or a constitutional amendment overrules them. This is the process Trump would have to navigate if he wants to abolish the 14th amendment.
Trump campaign defends immigration plan
donald trump immigration plans dnt foreman _00002313

Trump campaign defends immigration plan 05:40

There is another interesting wrinkle: Many citizens may not realize that their citizenship is not covered by the Constitution, but rather by federal statute. Currently those born in the U.S. territories do not have birthright citizenship via the Constitution, but by statute -- or not at all, in the case of American Samoa. It is interesting, according to advocate and fellow territorial attorney Neil Weare, that we are talking about a candidate opposing birthright citizenship, even as the Obama administration in fact opposes birthright citizenship for American Samoans in a case before a federal court of appeals.

And then there's me.

I was born in Japan. My parents are American: The Navy sent my father; my mother went with him -- probably to try a new country where she could complain about food. Because I was born abroad to American parents, I acquired citizenship at birth not from the Constitution, but under section 301(c) of the Immigration and Nationality Act. That means for people like me, and even Ted Cruz, our citizenship only emanates from a federal statute, which can be repealed.

It turns out that reasonable minds disagree on birthright citizenship -- a principle that most of us never thought about until this presidential campaign. The issue doesn't just touch children of immigrants -- it reaches all citizens whose citizenship is a product of federal law and not the constitution.

So could a President Trump abolish birthright citizenship? That depends on what the 14th Amendment actually means, and whether a president could rally a Congress around the idea.

But a president and Congress can certainly try, based either on the limited view of the current Constitution, or even by amendment: Even amendments are, well, able to be amended. (Remember when alcohol was legal, then it wasn't legal, then it was legal again?)

Don't think the Constitution can't change; it has flip-flopped before. Perhaps birthright citizenship is constitutionally guaranteed -- until it isn't.

The problem on this issue is that lawyers, media pundits, politicians, authors, "scholars", and many others who wish to expound on the issue of anchor baby citizenship haven't actually bothered to read either the 14th Amendment or the US Code 8, Chapter 12, Subchapter III, Part 1, Section 1401.Section 1401. There is no difference between the language of the 14th Amendment and US law regarding citizenship by birth. Both the 14th Amendment and the US Code pertaining to the US Immigration and Nationality Act of 1952 require that the person born here be subject to the jurisdiction of the United States to be a citizen by birth.

So to all the stupid people who claim that "if you're born here, you're a citizen, period" are the fools and idiots who have and are continuing to destroy our nation, including such morons as Bill O'Reilly at Fox News and States who hand out certified birth certificates to children of illegal aliens and ignoramuses in the Federal Government who hand out Social Security Numbers and Passports and Medicaid and Food Stamps to children of illegal aliens.

Illegal aliens are not subject to the jurisdiction of the United States nor are their children which is why neither illegal alliens nor their children are citizens of the United States.

We don't need to "nullify" what isn't. Children of illegal aliens are not citizens, they do not have citizenship, because they are not citizens under the 14th Amendment or US Law. So, what needs to be done is the US Government and all 50 States need to abide the Constitution and US Law. That means no certified birth certificate for children of illegal aliens. That means no state or federal benefits for children of illegal aliens. That means no Passports for children of illegal aliens. That means no Social Security numbers for children of illegal aliens. No voting rights for children of illegal aliens. No rights or privileges of US nationals/citizens shall be conveyed to people who are not eligible and that includes anchor babies who are NOT citizens of the United States, as a matter of pure law.

This does not require an Amendment to the US Constitution. It doesn't even require a new law to stop the illegal practice, although I believe a law is in the best interest of the United States to stop the idiots, fools and morons from handing out citizenship privileges and rights to people who are not entitled to them. All federal and state agencies are already subject to the US Constitution and federal immigration law that already prohibit birthright citizenship to people who are not subject to the jurisdiction of the United States, which includes first and foremost illegal aliens in our country in violation of US immigration law. If the law didn't apply to illegal aliens first and foremost it would not apply to anyone, the words would have no meaning and be useless. But of course the words have meaning and they are there for a very specific purpose which is to restrict automatic birthright citizenship to children of natural born and naturalized US citizens, children of freed slaves who were under both the jurisdiction and protection of the United States, and because of the Wong Kim Ark Supreme Court Ruling, children of legal immigrants.

https://www.law.cornell.edu/uscode/text/8/1401

U.S. Code › Title 8 › Chapter 12 › Subchapter III › Part I › § 1401

8 U.S. Code § 1401 - Nationals and citizens of United States at birth

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

US Code
Notes
Authorities (CFR)

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US LAW:

8 U.S. Code § 1401 - Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

(A) honorably serving with the Armed Forces of the United States, or
(B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Under our existing Constitution and Federal Law, neither the federal government nor any state has the authority to issue any document or right, privilege or immunity that is reserved for citizens or legal residents, including any document that would convey a right of automatic birthright citizenship to their children. That includes passports, Social Security numbers, drivers licenses, voter registration, state issued certified birth certificates, public funded benefits, and so much more. All 50 States need to be advised by the federal government that it will no longer recognize a state birth certificate issued to children of illegal aliens for the purposes of obtaining Social Security numbers, passports or federally funded benefits reserved for citizens and legal permanent residents. It's just that simple.

What do we do with illegal aliens who were born here who wrongfully think they're citizens when they aren't? They're deported until they meet the conditions of re-entry and naturalization, the same as legal immigrants.

Who in their right mind could have an emotional or legal objection to that?!

You hear these stupid people claim "but this is through no fault of their own". So what? That is irrelevant. What is relevant is that American Citizens are not responsible for these people because they are here through no fault of ours, they are not our responsibility, we are not required to use our money and life-time earnings struggling to attain our "DREAMS" or national debt burdening our posterity to fund theirs or allow our nation to ever be governed by or have elections tilted or policies influenced or our tax coffers robbed by people who aren't supposed to be in our country to begin with.

Trump isn't proposing changing birthright rules. He's actually proposing upholding the US Constitution and Federal Law as presently stated, and by doing so stopping the presently unconstitutional and illegal practice of the US government that results in passports, Social Security numbers, voting rights, federally funded benefits and so much more being issued by the federal government to people who are not citizens under either our law or Constitution and are not nationals under our immigration law. Anchor Babies are illegal aliens because they are children of illegal aliens and are citizens or nationals of other countries, not ours, and are not subject to US jurisdiction.

The easiest way to understand this for people like the author of the CNN article who for some untold reason struggle with what "under the jurisdiction of the United States" means are passports. What is the purpose of a passport? To tell the world you're under the jurisdiction and protection of the United States because you're a citizen of the United States. Therefore, if you are eligible for a US passport which is restricted to US citizens only, not green card holders, not immigrants, and most certainly not illegal aliens, then you are the only people in the world subject to the jurisdiction of the United States of America. Everyone else who is here or travels here comes in through an immigration process, are not citizens, and are not subject to the jurisdiction of the United States, because they are already subject to the jurisdiction of another nation as are all their children, regardless of where they are born.

Stupid, ignorant, uninformed, incompetent and/or treasonous government hacks and the giant morons to whom they reported up to the White House, are the pond scum responsible for the absurd, dangerous, unconstitutional and totally illegal practice of issuing Passports, Social Security Numbers, and federally funded benefits to children of illegal aliens who are no more citizens of the United States than their illegal alien parents.

Morons like "law professors", "legal analysts", Bill O'Reilly, Judge Napolitano and so many more who tripe the lie that the 14th Amendment guarantees anyone born in the US automatic birthright citizenship need to be called out, shouted down, with so much disgust and anger directed towards them for their idiocy that their employers can no longer afford to retain them on their staffs and payrolls.

Americans can no longer afford the dual issue of ignorance and evil in our world of Talk Heads to continue to destroy our sovereignty or bankrupt our nation with people who are not even supposed to be in the United States to begin with, let alone end up with passports, Social Security numbers, public benefits and voting rights.

This madness has to end now. So every American citizen needs to support Donald Trump's plan and any other politician's plan to end this travesty of recognizing children of illegal aliens as US citizens, because they aren't citizens of our country, they're citizens of their parents' countries where their parents are from and just children of criminals who invaded our country in violation of US immigration law.

Trump cant change those rules but Congress can.

W

Originally Posted by ALIPAC

Trump cant change those rules but Congress can.

W

No one needs to change those rules. The rules are already clear, born in the USA and under the jurisdiction of the United States which excludes all illegal aliens and their children because their children are not under our jurisdiction, they're under the jurisdiction of the home countries of their parents. Legal immigrants here on Green Cards can not get a US Passport because even though legally in the US, they are still travelling under the jurisdiction of their home country under their home country's passport. Legal immigrants can walk right into the Embassy or Consulate of their home nation and be fully protected by their government, because they are under that nation's jurisdiction, not the United States. Not even children of legal permanent residents are entitled to US citizenship, but until a decision reverses the Supreme Court Ruling or Congress passes a new law banning it, we're stuck with that.

But none of that applies to illegal aliens or their children. because the Wong Kim Ark case granted him citizenship on the basis that his parents were legally and running a legal business when he was born.

So absolutely any person in government can change the practice of issuing passports, Social Security numbers and federally-funded benefits to children of illegal aliens, because they are not citizens because they are not under the jurisdiction of the United States.

At the present time, no law is needed to stop this practice, although I like Steve King's and David Vitter's bills to clarify it going forward and strongly encourage our Do Nothing Congress to pass them post haste.

From: www.numbersusa.com/

MYTH: Ending birthright citizenship could cause many immigrants to lose their current citizenship.

TRUTH: No elected official or major organization has suggested taking away U.S. citizenship from the people in this country who already were given it as anchor babies. That is another false alarm perpetuated by some media reports.

Let's get rid of the misinformation and straw men arguments about birthright citizenship and have a calm discussion about what we need as a country.

https://www.numbersusa.com/news/myth...ht-citizenship

Originally Posted by ALIPAC

Trump cant change those rules but Congress can.

W

Obama fixed that issue for us. A President now has the Authority to *interpret* what Congress has said or what the Constitution should be. It would be pretty easy for him to actually change the policy through an EO now requiring proof of parents citizenship to establish US Citizenship. Pass Citizenship from the mother unless married with a valid marriage certificate. Further he could also require valid ID to receive a birth certificate to combat *fraud*. Congress or the SCOTUS could override him but SCOTUS would take years and assuming other things come into play first that should be happening as well the SCOTUS would likely side with him. Congress would either be deadlocked or barely pass an Act defining the Jurisdiction clause as NOT to grant automatic citizenship but require that the parents have allegiance to the US already.

The real risk would come in trying to remove citizenship from anchor babies which is an issue Congress would have to be involved in.

Mark Levin says the following:


“Birthright citizenship:

I have discussed this a few times in my radio career – I think 2009. Maybe it was 2010. I think once or twice since then. And unfortunately, I had to watch on TV, while I was in California, some so-called experts tell us – and former Bush appointees, and a former superior court judge in New Jersey tell us – that the Constitution embraces birthright citizenship, and there’s not a damn thing we can do about it. Well that, of course, is completely false.

“And I don’t know why people who call themselves Constitutionalists swerve back and forth, lurched from the Constitution to Supreme Court decisions, and back and forth. First, let’s figure out what the Constitution says.

“And I see our senior legal analyst friend – and he is a friend of mine, Napolitano – is all over the place. And he’s wrong, as are many other so-called experts.

“I’ve actually spent my life on the Constitution. I wasn’t a superior court judge in New Jersey. I wasn’t a professor for doughnuts and coffee at Shmegegge University or what have you. And this is one of the areas I have poured over, over the decades.

“And yet nobody did a better job at explaining this than Professor Edward Erler, who I’ve talked about over the years. And he’s a professor at California State University. He is also at The Claremont Institute, a senior fellow there. But more than that, he happens to be right. And he testified before a subcommittee of Congress many years ago, almost 20 years ago. And he set forth the case.

“Now, he’s not the only one: Professor Thomas West has; Lino Graglia has, professor at University of Texas School of Law School. But even more than them, the framers of the Constitution set forth the basic law. And then we have, after the Civil War, three amendments to the Constitution – the Thirteenth, Fourteenth and Fifteenth – called the Civil War Amendments. And we know pretty much what occurred.

“Professor Erler was testifying. He said, ‘It’s my considered opinion, Congress has the authority, under Section Five of the Fourth Amendment, to define the jurisdiction of the United States [of the Fourteenth Amendment, of course]. Indeed, it is my contention that Congress has exercised that power on many occasions, most recently in the Immigration Reform and Control Act of 1986, and I would say they also exercised it with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.”

“He points out, ‘Senator Jacob Howard … .’ You are now going to know more than anybody else, ladies and gentlemen. You know, one of the things I find when I sign books, and it’s good to do it because I get to talk to so many of you, people say, ‘Mark, your show is different because you really get into the substance.’ Now, we have fun. Don’t get me wrong. We do our thing too. But we do get into the substance. It’s one thing to say, ‘Yeah, yeah, yeah, yeah. Obviously the Constitution doesn’t provide that.’ That’s not enough. That’s not enough. So when you’re in a debate format or a political format or a classroom format or this format, you need to back it up, and that’s what we do here. We back it up.

“Senator Jacob Howard, the author of the citizenship clause of the Fourteenth Amendment – he spoke – he told us what he meant. He defined who would fall within the ‘jurisdiction of the United States.’ Ready?

“‘Every person born within the limits of the United States, and subject to their jurisdiction, [meaning the states – their jurisdiction] is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great issue in the jurisprudence and legislation of this country.’

“Mr. Call Screener, Mr. Producer, you understand that, right? Is it not plain English? Is he not as clear as can be, that it does not include aliens, it does not include foreigners, it does not include families or with ambassadors or foreign ministers?

“So, the author of the citizenship clause intended to count foreigners, aliens and those born to ambassadors, foreign ministers, as outside the jurisdiction of the United States. That’s Senator Jacob Howard. He knew, as his reference to natural law indicates that the republican basis for citizenship is consent – consent of the country.

“You can’t self-immigrate. You can’t claim jurisdiction because you happen to walk into the United States.

“Senator Lyman Trumbull, Chairman of the Judiciary Committee and a powerful supporter of the Fourteenth Amendment, remarked on May 30, 1866, that the jurisdiction clause includes those ‘not owing allegiance to anybody else … It’s only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.’ Now this was familiar language.

“The Civil Rights Act of 1866 defined citizens of the United States as ‘all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.’ ‘Not subject to any foreign power.’

“It is universally agreed that the immediate impulse of the passage of the Fourteenth Amendment was to constitutionalize (constitutionalize) the Civil Rights Act of 1866. It was an attempt to put the question of citizenship and matter of federal civil rights beyond the reach of simple congressional majorities. Thus, it was clear, the idea of allegiance, ‘not subject to any foreign power,’ was central to understanding the jurisdiction clause of the Fourteenth Amendment.”

http://www.alipac.us/f13/mark-levin-...enship-322293/

Exactly. The issue is absolutely wonderfully that simple. And if people who talked about the Fourteenth Amendment would simply read it, they would know for an absolute irrevocable fact that this is what it means, because that is exactly what it says in our language.

One of the articles posted by JohnDoe2, a CBS article quoted a "law professor" who expounds quite vigorously here and there on immigration law including before Congress. His name is Hiroshi Motomura, and he teaches law at UCLA. He's also Co-Founder and Co-Director of the Rocky Mountain Immigration Advocacy Network, and serves on the Board of Directors of the National Immigration Law Center, was an outside advisor to the Obama-Biden Team's Working Policy Group on Immigration Policy and is a member of the Editorial Board of the International Migration Review.

https://law.ucla.edu/faculty/faculty...oshi-motomura/

And here are his books:

Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (Oxford 2006)

Immigration and Citizenship: Process and Policy (7th ed. West 2012)

Forced Migration: Law and Policy (2d ed. West 2013)

Immigration Outside the Law (Oxford 2014)

So when asked a couple of days ago about Trump's plan to end birthright citizenship for children of illegal aliens, this is what he had to say:

Hiroshi Motomura, who teaches immigration law and citizenship at the University of California-Los Angeles, told CBS News that ending birthright citizenship is "an overly simple solution for a really complex problem...with consequences that are going to be seriously negative consequences for this country. It would be much better to fix the immigration system."

http://www.cbsnews.com/news/ending-b...t-citizenship/

What is complex about not handing out passports, social security numbers and voter registration when they turn 18 to children of illegal aliens who aren't entitled to them? Sounds like a very simple solution to me.

What would the negative consequences possibly be from that? None, all the consequences are positive.

What do we need to fix about our immigration system? The only thing wrong with our immigration system is tens of millions of illegal aliens are breaking US immigration law.

So what does all this mean? It means this "law professor" promotes and even named a book after it, "Immigration Outside the Law" which explains why he had absolutely no legal argument to toss back at Trump during his interview with CBS, because he knows there isn't one.

Automatic birthright citizenship for children of illegal aliens is: Citizenship Outside the Law.

Americans don't have to be legal scholars or law professors to know what this means which is what it says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

Jurisdiction is a simple word especially in the context of citizenship. It means the territory of authority to which you belong.

Illegal aliens do not belong in the territory of authority of the United States, and therefore can not breed citizens of the United States, a jurisdiction they are banned from entering by federal law.

So when Donald J. Trump says calmly and seriously to Bill O'Reilly, "I don't believe they're American citizens", he is absolutely 100% correct and Bill O'Reilly is the second biggest clown right after Judge Napolitano who has sadly proved himself a Fox Court Jester.

They both remind me of someone who likes fine wine but thinks stomping on grapes in the bath-tub for an hour will make them a jug of it.

Originally Posted by Judy

Most people assume that automatic citizenship conferred upon those born in the United States has always been a constitutional, and therefore immutable, right. Some are now suggesting that's not the case.

From a previous thread:
“Senator Jacob Howard, the author of the citizenship clause of the Fourteenth Amendment... told us what he meant. He defined who would fall within the ‘jurisdiction of the United States.’

“‘Every person born within the limits of the United States, and subject to their jurisdiction, [meaning the states – their jurisdiction] is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.

Associate Justice Gray, writing for the majority in the Wong Kim Ark vs. United States, completely ignored both the language of the 14th Amendment and its purpose, as stated by the author of the citizenship clause. Instead the court relied on English Common Law.

Illegal aliens were not a topic in the 1880's. Britain ended birthright citizenship in 1983.
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