I wish Trump were right about birthright citizenship, but he’s probably not

In determining citizenship, the United States has a very unusual approach. You’re a citizen if you were born here. (You’re also a citizen if you were born abroad under certain circumstances, but that’s a different issue.)

That’s a bit crazy, because it means that if a woman (aren’t you glad we don’t have to refer to them as “child-birthing persons” anymore?) makes it into the United States, legally or illegally, in time to give birth – right on the north bank of the Rio Grande, for example – her baby is an American citizen.

The mother doesn’t magically become an American citizen by giving birth in America, but through this loophole in the law her American-born baby does.

This has happened literally millions of times over the last few decades, though not always on the north bank of the Rio Grande. It happened especially after Joe Biden abolished the southern border.

The upshot is that millions of people are American citizens merely because their mothers managed to illegally enter the country to give birth here. Very few countries allow this.

I’m sure Joe Biden would have done this by Executive Order, or some such thing, just as he opened the southern border by Executive Orders, but he didn’t need to.

You see, this loophole isn’t just the law; it’s the Constitution. In the aftermath of the Civil War, the 14^th Amendment was passed to ensure the citizenship of former slaves. The first sentence 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.”

It’s tempting to blame today’s outcome – millions of new American citizens born to illegal immigrants – on the people who wrote and passed the 14^th Amendment.

Didn’t they anticipate that the American people over the next century and a half would permit the accumulation of extraordinary, extra-Constitutional power in the hands of the Presidents, and that the people would permit a particular senile, corrupt President to exercise those powers to abolish the southern border and thereby ensure citizenship to millions of babies born to illegal immigrants entering through that abolished border?

To ask that question is to answer it. The answer is no, they didn’t anticipate that. They thought their descendants would be smarter and more careful than that.

Ah, but there’s a loophole in this citizenship loophole, say those who are desperate to find one. The loophole, they say, is the qualifying phrase “subject to the jurisdiction thereof.” The immigrant babies, they say, are not “subject to the jurisdiction” of the United States.

But they are.

People without special immunities are subject to the jurisdiction of the United States simply by being present within the United States. That’s true of a tourist from France or an illegal immigrant from Mexico. That Frenchman and that Mexican are bound by our laws while they’re in our country, just as we are bound by their laws when we are in their countries.

So, what is the purpose in the 14^th Amendment of the qualifying phrase “subject to the jurisdiction thereof”?

It was almost certainly to exclude rare individuals such as the babies of diplomats. A woman who is a diplomat or the wife of a diplomat has diplomatic immunity from the jurisdiction of the United States, as does her newborn baby. Therefore, that diplomatically immune baby, even if born in a Washington DC hospital, is not an American citizen.

Similarly, at the time the Amendment was passed, Native Americans (called “Indians” at the time, but at least they were never called “birthing persons”) on reservations were not United States citizens and therefore not subject to the jurisdiction of the United States. Consequently, their children, likewise, were not United States citizens. (This was revised by statute in 1924.)

In short, I wish it were otherwise, but intellectual honesty (the only kind I have, so-called friends say) compels me to conclude that the 14^th Amendment guarantees citizenship to the America-born babies of illegal immigrants.

This issue has been addressed in the last month by two Federal Courts, and each has concluded that the analysis set forth above is correct, and that it’s not even a close call. If this issue goes to the Supreme Court, the likely outcome is a 9-0 ruling.

There are other solutions to the problem. The 14^th Amendment could be revised by a new Constitutional Amendment. But that takes an Act of Congress and the ratifying vote of three-fourths of the states.

Alternatively, we could secure the border to address this problem going forward, and we should, while embracing the citizens who became such, as newborns, when the border was open.

After all, they did not choose their womb or its location at the time of their birth. Those fortuitously born Americans are as likely as other new citizens to fulfill the American dream. Joe Biden dealt us a bad hand. Let’s not play it badly, too.

Glenn K. Beaton practiced law in the Federal Courts, including the Supreme Court.