Trump Birthright Citizenship Order Already Challenged in Court
One of the first executive orders signed by Trump was the “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP.”
This would block birthright citizenship for children of illegal immigrants, but it is already being challenged in court.
The Order
The order outlines several circumstances when birthright citizenship should not be in play.
“When that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
“When that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
Trump wrote the order on the basis that the “Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.” The order continues, “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
The 14th Amendment
The text of the 14th Amendment, Section 1, states, “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.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In previous cases, the Court has sided on the side of birthright citizenship. For instance, in one case, a child of Chinese parents who were not eligible for citizenship was ruled to be a citizen based on this clause, but Trump is clearly addressing a different issue here.
The key aspect of Trump’s order is specifically calling out a parent for having been in the country illegally, and the second parent not being a citizen of the country or a lawfully legal resident.
The Challenge
When Trump issued this order, I immediately stated it would be challenged, and it was. This was hardly brain surgery, as immigration advocates were ready to go as soon as Trump’s pen left the order.
The order has been temporarily blocked by U.S. District Judge John Coughenour, a Ronald Reagan appointee, after numerous states with Democrat governors filed suit to block the order.
In his ruling to issue the TRO, Coughenour stated that the order “boggles the mind” and that the order was “blatantly unconstitutional,” but I am not so sure about that.
If I had to put a number on this, I think Trump is probably under 10% to win, but that is as things stand right now. We are going to have all kinds of constitutional experts look at this and chime in, so I am looking forward to hearing their input. I don’t claim to be a legal expert, but I am very familiar with our Constitution, and from my perspective, Trump hit the sweet spot with his qualifiers, but I am just not sure five justices on the Court will be willing to stick their neck out on this one.
