One of the executive orders Donald Trump signed on his first day in office ordered federal departments and agencies to not issue any citizenship documents to anyone born in the United States to a mother who was either illegally or temporarily in the United States unless the father was a citizen. It should surprise no one that this order stirred up controversy. Of the several lawsuits that have been filed I have found one thing in common: An inability to read the law.
Executive Order
Let’s start by looking at the executive order that started this particular legal issues:
Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment 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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race. PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP – Executive Order
Donald Trump sees U.S. citizenship as “a priceless and profound gift.” He even quotes the Fourteenth Amendment and its purpose. As the EO points out, the Fourteenth Amendment 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. U.S. Constitution, Amendment XIV, Section 1
And what was the purpose of this language? As the EO states, it was to repudiate the Supreme Court’s decision in Dred Scott v. Sanford.
In a decision that later was nullified by the Thirteenth and Fourteenth Amendments, the Supreme Court held that former slaves did not have standing in federal courts because they lacked U.S. citizenship, even after they were freed. Dred Scott v. Sandford, 60 U.S. 393 (1856)
In other words, the Supreme Court claimed that former slaves were not citizens, and therefore did not have standing to sue in federal court. In one of the complaints, States of Washington, Arizona, Illinois, and Oregon v. Trump et. al., we find the one mistake common to every other complaint I’ve reviewed.
1. Birthright Citizenship Is Enshrined in the Constitution and Federal StatuteThe Citizenship Stripping Order is unlawful because its limited view of birthright citizenship is contrary to the Fourteenth Amendment’s text and history, century-old Supreme Court precedent, and longstanding Executive Branch interpretation, as well as the Immigration and Nationality Act (INA). Section 1 of the Fourteenth Amendment to the Constitution 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.” U.S. Const. amend. XIV, § 1. This provision is known as the Citizenship Clause, and it contains no exceptions for children born to non-citizens or undocumented immigrants. States of Washington, Arizona, Illinois, and Oregon v. Trump et. al. – Motion for TRO
While the complaint claims “it contains no exceptions for children born to non-citizens or undocumented immigrants.”, that is exactly what the phrase “and subject to the jurisdiction thereof” means.
Subject to the Jurisdiction
How can we tell what the meaning of “subject to the jurisdiction thereof” means? In this case, it’s pretty easy, since the person who proposed the language told us why. While the language of what would become the Fourteenth Amendment was being debated in the Senate, one senator, Jacob Merritt Howard of Michigan, proposed an amendment to the language.
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Congressional Globe p. 2890
Senator Howard specifically said he proposed the phrase “subject to the jurisdiction thereof” would not include foreigners, aliens, or those who belong to families of ambassadors or foreign ministers. Which means the claim that the Citizenship Clause “contains no exceptions for children born to non-citizens or undocumented immigrants (properly known as illegal aliens), is obviously and objectively wrong.
Also, since the Immigration and Nationality Act duplicates that language from the Fourteenth Amendment, the complaint is just as wrong in that regards as well.
§1401. Nationals and citizens of United States at birthThe following shall be nationals and citizens of the United States at birth:(a) a person born in the United States, and subject to the jurisdiction thereof;8 USC §1401 – Immigration and Nationality Act
So when the court claims that “Birthright Citizenship Is Enshrined in the Constitution and Federal Statute,” that is patently false.
United States v. Wong Kim Ark
Many of the complaints point to a 1898 Supreme Court case United States v. Wong Kim Ark as proof that the Fourteenth Amendment enshrines birthright citizenship. However, a quick look at the syllabus shows something very different.
A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, United States v. Wong Kim Ark, 169 U.S. 649 (1898)
To start, while Wong Kim Ark’s parents were of Chinese descent, at the time of his birth they were permanent residents of the United States, even though they were subjects of the Emperor of China. (Hold on to that thought.)
The facts at issue was, when Wong Kim Ark returned from a temporary trip to China, he was refused entry. But why was he refused?
“Because the said Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time last past has been, a laborer by occupation.” United States v. Wong Kim Ark, 169 U.S. 649 (1898)
Interesting that the reason Wong Kim Ark was denied entry to the United States was because of his looks, not his place of birth. The court came to an interesting decision.
The court ordered Wong Kim Ark to be discharged, upon the ground that he was a citizen of the United States. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
But since Wong Kim Ark’s parents were subject to the Emperor of China at the time of his birth, he was not subject to the jurisdiction of the United States, and therefore not eligible to be a natural born citizen. What the court found was that, because his parents had permanent resident status, they were subject to the jurisdiction of the United States and that qualified him for citizenship. But was that following the law or the Constitution.
Regan v. King
Another case I saw referred to was Regan v. King. In this case, plaintiffs claimed that 2600 full blooded Japanese, born in the United States, were eligible to vote. As the case notes, it was rather unique.
This case is exceptional because the sole question it presents to this court is one which has been definitely decided by the United States Supreme Court: Is a person of the Japanese race, born within the United States, a citizen? Regan v. King, 49 F. Supp. 222 (N.D. Cal. 1942)
Again, the question before the court was a question of race, not of jurisdiction. But since the Supreme Court had already decided the Wong Kim Ark case, this court extended citizenship not only to those were children of permanent residents but of anyone born in the United States.
Conclusion
Remember when I asked you to hold onto the thought about Wong Kim Ark being the child of parents who were subjects of the Emperor of China? The Wong court tried to rewrite the Constitution to include permanent residents as “under the jurisdiction thereof”. While that may have been a logical position, it wasn’t supported by the law. Then the Regan court extended that to include everyone born in the United States. In other words, the court’s creeping decisions are used to try to make the Constitution say something it not only does not say, and in fact was the direct opposite of the legislative intent.
Remember, according to the Supremacy Clause of the Constitution, a decision of the court is NOT the supreme law of the land, the Constitution is. So when the Constitution says “and subject to the jurisdiction thereof”, that supersedes these decisions by the court. Furthermore, when a judge places the decisions of the court above the supreme law of the land, they not only are violating their oath of office, but their duty to maintain good behavior.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, U.S. Constitution, Article III, Section 1
So in this scenario, who is upholding their oath of office and who is violating it? Is it the attorneys and groups who filed these complaints, the judge who issued a temporary restraining order, or the President who tells the executive branch to follow the language of the Constitution? Since the Constitution is the supreme law of the land, I think we know who is actually fulfilling his oath of office to make sure all of the laws of the United States are faithfully executed.
Comentários