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It didn't take long for the Lollapalooza lawsuit to come to light.
Within hours of taking office, about two dozen states sued President Donald Trump over an executive order denying automatic citizenship to U.S.-born children of parents who entered the country illegally.
While the attorneys general of each state filing the lawsuit dismissed the president's actions as a flagrant and unlawful attack on the Constitution, the president's orders could be invalidated in court based on the plain meaning of the Fourteenth Amendment. I confidently assured him that I would.
Trump administration fights back as ACLU files citizenship-by-birth lawsuit: 'We're ready to face them'
Not so fast.
As I explained on Fox News Tuesday morning, President Trump has credibly stated that the amendment was never intended to apply to people who broke the law by entering the country fraudulently or illegally. Makes a defensible claim.
Indeed, it could pose a significant challenge for Trump in court. But he started a valuable and logical discussion. Ultimately, it will be up to the U.S. Supreme Court to further define the parameters of what the framers of the Fourteenth Amendment intended.
Let's start with the text of the citizenship clause itself.
“All persons born or naturalized in the United States and subject to its jurisdiction are nationals of the United States and of the state in which they reside.”
The operative phrase “subject to jurisdiction” is at the heart of President Trump's birthright citizenship justification. What does that mean?
As our nation's chief executive, charged with enforcing all laws, Mr. Trump is narrowly interpreting that constitutional provision. In other words, illegal aliens are not “subjects to the jurisdiction” of the United States because they presumptively maintain political allegiance to another sovereign as nationals of a foreign power.
Simply put, the mere act of setting foot on U.S. soil does not necessarily constitute allegiance or otherwise render an individual fully “submissive” to U.S. jurisdiction.
The legislative history of the Fourteenth Amendment supports this point. This law was ratified in 1868 after the Civil War. Its sole purpose was to grant citizenship and full rights to formerly enslaved people. There is little evidence that Congress and the states ever intended to extend citizenship to children of diplomats, temporary students, tourists, or illegal aliens.
While it is true that everyone here must abide by U.S. law under the doctrine of territorial jurisdiction, it is not the same as political jurisdiction. Sen. Lyman Trumbull, the driving force behind the Fourteenth Amendment, argued that the citizenship clause does not include individuals who remain subject to or owe allegiance to a foreign power. Specifically stated.
Proponents of birthright citizenship for illegal immigrants often cite and misunderstand the 1898 Supreme Court decision. United States v. Won (169 US 649) His parents, originally from China, are legal and permanent residents, although some children were born in the United States. The High Court's judgment focused on that clear fact.
judgment in won does not support the proposition that children of parents who are in the United States illegally are automatically granted citizenship. Their citizenship derives from their mother's and father's home countries.
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More directly relevant are two other Supreme Court cases in which justices explained the original intent behind the Fourteenth Amendment. The modifier “subject to its jurisdiction” excludes nationals of foreign countries born in the United States (Slaughterhouse Case, U.S. 83 (16 Wall.) 36, 1872. Elk v. Wilkins, 112 US 94, 1884)
For too long, our government has granted citizenship documents based on an understanding of the Fourteenth Amendment that is, at best, unclear, if not wrong. Congress could have made that clearer, but it has consistently failed to do so.
With his executive order, President Trump finally addresses a contentious issue that will now be decided in court. Remember, the Supreme Court's primary role is to interpret the Constitution and resolve such disputes.
Trump's critics are wrong to claim that he is abusing his power. As stated above, he has made that case properly and is moving the matter forward for judicial review.
This is exactly what the Founders intended when they created a unique government of checks and balances.
Predictions of Trump's defeat are – as always – premature.
