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On this week’s edition of Case in Point, we address one of President Trump’s most controversial executive orders, titled “Protecting The Meaning And Value of American Citizenship” with Heritage Senior Legal Fellow Amy Swearer. The Order moves to end birthright citizenship practice — something which guarantees that U.S.-born children are citizens regardless of their parents’ status.
The next day, attorneys general from 22 states sued to block the Executive Order by asserting that the President is attempting to eliminate “a well-established and longstanding Constitutional principle” by executive fiat. But is he?
What is the history of the language of the “citizenship clause” in the 14th Amendment? And what does it reveal? What happens next in the litigation? All that and more on this week’s edition of “Case in Point”
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Outstanding lesson by Ms. Swearer.
I hope she has written or is writing versions for general circulation publications, and not just a law review article. Her explanation here in this interview is very very accessible to the non-lawyer who will never go near a law review article.
I have heard others say that “subject to the jurisdiction thereof” puts a limit on universal “birthright citizenship.” But then the advocates of universal “birthright citizenship” either say, “‘subject to the jurisdiction’ just means they can be arrested if they commit a crime like burglary or murder” or “the Wong Kim Ark decision ends all discussion.” So a real discussion of the issues never comes forth.
We in the 21st century tend to think more of the benefits of citizenship than of the obligations such as taxation and conscription for military service. I had not really thought about the British common law origins of the birthright citizen (meaning subject in their thinking) revolved around taxation and conscription. I find it interesting therefore to think about whom could the United States tap for taxation, or, if we reinstated a military draft, conscript for military service. If someone happens to be born in the United States while his or her family is visiting, and then the whole family returns to their home country, are we prepared to say that by virtue of his or her U.S. birth, the U.S. can now go to that other country and require that person to pay U.S. income and Social Security taxes for the rest of his or her life? Can we conscript that person for military service if the draft is reinstated?
I also found the Ms. Swearer’s straightforward description of the background of the Wong Kim Ark case helpful, and why because of the laws in place at the time the decision is not as clear as the advocates of universal “birthright citizenship” claim it is. And as someone who prefers shorter more straightforward court opinions, I respond to the suggestion that if the Supreme Court was just applying the old English common law idea that location of birth controls citizenship, the decision would have been much shorter, as it would not have needed to go into the circumstances and status of the parents.