President Donald Trump announced he plans to sign an executive order attempting to eliminate birthright citizenship for children born to non-citizens or unauthorized immigrants.
Stephen Legomsky, the John S. Lehmann University Professor Emeritus at Washington University in St. Louis School of Law, said the proposal is “flatly wrong” and would not pass the Supreme Court, if so challenged.
Legomsky, the former chief counsel for U.S. Citizenship and Immigration Services in the Obama administration, is principal author of the law school coursebook “Immigration and Refugee Law and Policy” (7th edition forthcoming).
“President Trump’s claim that he can eliminate birthright citizenship by executive order is flatly wrong. The U.S. Constitution declares that every person born in the U.S. and ‘subject to the jurisdiction thereof’ is a U.S. citizen,” Legomsky said. “The Supreme Court in 1898, in United States v. Wong Kim Ark, held explicitly that the language ‘subject to the jurisdiction thereof’ was meant to exclude (besides Native Americans born on tribal land) two groups and two groups only — children of foreign diplomats and children of enemy occupiers. The court based its interpretation on the three centuries of clear, unbroken British law from which the drafters of the U.S. Constitution drew their understanding.
“Moreover, this is only common sense: Like anyone else, native-born Americans, whoever their parents are, can be charged with crimes if they disobey U.S. law. How would this be possible if the U.S. had no jurisdiction over them?
“The president was also wrong to say that the United States is the only country that recognizes birthright citizenship. By my last count, there are approximately 30 countries with similar laws. They are particularly common in the Western Hemisphere, including Canada.
“In taking this fringe position, President Trump has now gone beyond even his all-out war on immigrants. This latest attack extends his declaration of war to native-born U.S. citizens. I expect that even the current Supreme Court will find this to be too great a stretch.”