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Policy Summary
The Fourteenth Amendment to the United States 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.”

In 1898, the United States Supreme Court decided the case United States v. Wong Kim Ark. In that case, Wong Kim Ark was a person of Chinese descent who had been born in San Francisco to Chinese immigrant parents. After traveling to China for a visit, Wong Kim Ark returned to San Francisco but was refused entry on the grounds that he did not have U.S. citizenship. Wong Kim Ark brought a case in federal district court that eventually was appealed to the U.S. Supreme Court. In a 6 – 2 decision that traced the history of the legal concept of “jus soli” (citizenship based on the place of birth) and set the legal precedent for persons born on U.S. soil the Court held that Wong Kim Ark did have United States citizenship because he was born on U.S. land despite his parents being foreign nationals. (There are exceptions to this rule that did not apply to this case.).

On August 21, 2019, President Donald Trump stated that he was going to end the rule that persons born on U.S. soil are given automatic United States citizenship. He stated that he was preparing to change the long – standing rule with an executive order. LEARN MORE, LEARN MORE

Analysis
President Donald Trump’s statement that he would overturn the well – settled legal rule that gives persons born anywhere on U.S. soil automatic American citizenship simply cannot be done because of the strength of the legal authorities supporting the rule and the political structure of the U.S. Government.

First, what the President is proposing would go up against some solid legal authorities. The text of the Fourteenth Amendment specifically states in no uncertain terms that “[a]ll persons born or naturalized in the United States…are citizens of the United States.” There is no ambiguity here about what these words mean. The President acknowledges this when he stated his intention to end the rule but the fact those words are included in the U.S. Constitution demonstrates that this is a rule meant to endure and withstand changing trends on immigration viewpoints in American politics. In addition to the language in the Constitution, there is also the Wong Kim Ark Supreme Court case that interpreted the Citizenship Clause in the Fourteenth Amendment. That case ruled definitively to uphold the principle that a person born on U.S. soil acquires American citizenship. The fact that this case has never been overruled after one hundred twenty years gives it significant weight as a case that is legally sound and rightfully decided.

Second, the President’s statement that he will overturn the rule with an executive order gets it wrong on what powers he can yield as President. The use of an executive order by the President is used to direct the activities of executive branch agencies and personnel. The executive order must also be consistent with and not contradict existing U.S. law passed by Congress or set forth by the Supreme Court. What President Trump is trying to do is unilaterally change well – settled American law without Congressional approval. And his proposed executive order directly contravenes a rule that the Supreme Court has already ruled on. The American system of “checks and balances” government was designed specifically to prevent one branch of government from taking actions that might be entrusted to another branch or do something beyond the limits of the executive branch of government as the President is suggesting he will do here. Based on this, the President simply cannot issue an executive order and change the birthright citizenship law on his own.

The President has made a suggestion that may have been an attempt to appeal to his political base but his proposal is simply too far – fetched and likely unlawful from a legal standpoint. LEARN MORE, LEARN MORE

Engagement Resources

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoTaylor Wilcox

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