Opinion: Trump’s big (and bad) idea: End birthright citizenship

Improbable Republican presidential front-runner Donald Trump has released a position paper on his signature issue — illegal immigration.

In addition to proposing construction of a permanent wall on the border with Mexico and an increase in Immigration and Customs Enforcement officers, Trump advocates an end to birthright citizenship. That is the practice of granting U.S. citizenship to children born in the U.S., even if their parents are in the country illegally. (Trump isn’t the only Republican to take this position.)

Trump makes the debatable claim that birthright citizenship is “the biggest magnet for illegal immigration.” This is also known as the “anchor baby” theory of illegal immigration.

Trump didn’t specify how he would end birthright citizenship. It’s widely believed that doing so would require amending the Constitution. The 14th Amendment, added to the Constitution in the aftermath of the Civil War, says in part, “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, as The Times noted in an editorial last year, some scholars believe that children of foreign nationals in the U.S. illegally are not “subject to the jurisdiction” of the United States. Peter Schuck of Yale Law School elaborated on this argument in an op-ed column last November:

“So what does ‘subject to the jurisdiction’ mean? The Supreme Court long ago decided this phrase confers birthright citizenship only on those who are ‘not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance’ at birth. …

“What about the U.S.-born children of the 11.2 million undocumented immigrants here in the U.S.? The 14th Amendment doesn’t directly address their status (there was no illegal immigration in 1868). Nor has the court ever squarely held that such children are birthright citizens, although this is the common practice, as the court acknowledged in a footnote in 1982.”

Periodically, legislation is introduced in Congress to end birthright citizenship for children of those in the country illegally. The Birthright Citizenship Act of 2015, proposed by Sen. David Vitter (R-La.) and Rep. Steve King (R-Iowa), says that a child born on U.S. soil would become a citizen only if at least one of his parents was a U.S. citizen or national, a lawful permanent resident or an immigrant serving in the U.S. military.

If such a bill became law — an unlikely possibility — it surely would be challenged in the courts. In 1898, the Supreme Court upheld the citizenship of Wong Kim Ark, who was born in San Francisco to Chinese parents. The majority cited English common law and the principle of jus soli (Latin for “right of the soil”), according to which nationality is determined by place of birth.

That would seem to suggest that children of immigrants in the country illegally also would be U.S. citizens. But opponents of birthright citizenship note that Wong’s parents (in the words of the court) had a “permanent domicile and residence in the United States.”

They’re probably grasping at straws; elsewhere in the opinion, the court implies that the only U.S.-born children not “subject to the jurisdiction” of this country were the offspring of foreign diplomats or foreign occupiers.

There is no doubt that birthright citizenship could be ended by a constitutional amendment, but any such amendment would face insuperable odds.

And for good reason. As The Times observed in its editorial: “Birthright citizenship is an emblem of equality and inclusion. Many other countries confer citizenship on the basis of bloodlines, what the law calls jus sanguinis. That makes sense when nationality is conceived of primarily in terms of ancestry or tribe or race or ethnicity. But in America, a nation of immigrants, citizenship is defined differently. That principle was established when the 14th Amendment was adopted, and it should not be tinkered with today in an effort to keep out unwanted immigrants.”

Follow Michael McGough on Twitter @MichaelMcGough3