On his first day in office, President Donald Trump issued an executive order aimed at ending automatic citizenship — known as “birthright citizenship” — for children born in the United States to two noncitizen parents.

His argument rests on interpreting the phrase “subject to the jurisdiction thereof,” found in the 14th Amendment, which codified birthright citizenship into the Constitution. Trump claims that noncitizens, both legal immigrants and undocumented immigrants, are not “subject to the jurisdiction” of the United States. Therefore their children are not entitled to automatic citizenship.

It’s clear that Trump has little regard for America’s extraordinary ability to welcome newcomers and transform them into fully equal citizens. It’s just as clear that he can’t nullify a constitutional right with the stroke of a pen.

The president’s interpretation has been tested by the Supreme Court and found invalid. In United States v. Wong Kim Ark (1898), the court ruled that a child born to Chinese immigrants was a U.S. citizen by birth, even though his parents were not eligible for citizenship. The court affirmed that “every person born in the United States … needs no naturalization.” In the 1980s, the court reaffirmed this principle in Plyler v. Doe and INS v. Rios-Pineda.

The Supreme Court has specifically clarified what “subject to the jurisdiction thereof” means. Today, it refers to diplomats and their children, who are not subject to U.S. law because of diplomatic immunity. Diplomats generally cannot be arrested, charged or imprisoned. They are, by law, outside U.S. jurisdiction.

If the president has a different interpretation of the 14th Amendment, his administration regularly contradicts it with its actions. The president has increased law enforcement actions against legal immigrants on visas and illegal immigrants, sending them to jail, deporting them, and even, in some cases, airlifting them to foreign prisons for detention.

Trump’s actions demonstrate, repeatedly, that he thinks people in the United States on visas and illegal immigrants are subject to the legal jurisdiction of the United States. If this is the case, these same immigrants and their children are covered by the 14th Amendment.

Critics of birthright citizenship will argue that it encourages illegal migration to gain citizenship for unborn children and birth tourism. However, there’s little evidence of either. Births to undocumented mothers have declined since 2009. And undocumented parents gain no immediate benefit from having a child here — citizen children can’t sponsor a parent until age 21. As for birth tourism, it’s rare: The Niskanen Center estimates fewer than 2,000 such births a year. Border officials already have the authority to deny entry to women suspected of coming to the United States for this purpose.

More fundamentally, birthright citizenship should remain because it embodies our national ideals. America is a nation of immigrants, founded on the premise that American identity is rooted in shared values that anybody can live by — not by immutable traits such as race or ethnicity. The 14th Amendment was adopted to enshrine that principle permanently rather than leave it vulnerable to the shifting whims of politicians. Punishing children for their parents’ status or creating two classes of birth contradicts the Declaration of Independence’s assertion that “all men are created equal.”

What Trump proposes — confining citizenship primarily to those with a citizen parent — is rooted in jus sanguinis, or “right of blood,” a European concept America explicitly rejected at its founding. Instead, our full commitment to jus soli— “right of the soil” — ensures that we do not become a society stratified into citizens and noncitizens based on birthright.

Immigrant families invest more in our country when they know their children will be treated as equals. Unlike many European countries that struggle to integrate newcomers, the United States has absorbed wave after wave of immigrants with relative success because they are fully American by the second generation.

Birthright citizenship represents the best of America: a clear, principled rule that has served us well for more than 150 years. It cannot be easily changed, nor should it be, because it defines who we are: a nation where everyone is given a chance to belong and succeed from the very start.

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ABOUT THE WRITER

Colin Mortimer is a senior director at the Progressive Policy Institute, serves on the board of New Democracy and is a founder of the Center for New Liberalism. He wrote this for InsideSources.com.

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