Among the appalling, thoughtless, reckless, and inane executive orders trump issued on Day One, the one considered the most *bonkers is the one to end birthright citizenship.
Yes, is it is true that for over a 130 years, courts have deemed that birthright citizenship is protected by the 14th Amendment, which states:
All people 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.
According to Trump’s executive order:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
A lawsuit has already been filed on this order, and I expect others—many others, and not filed in Texas—to follow.
But let’s take a moment to look at Trump’s action another way.
What Trump is saying is that the parents of the child are not subject to jurisdiction, and therefore the the child isn’t a citizen. Technically, the ‘not subject to jurisdiction’ has meant that children of certain foreign diplomats who have immunity from our legal jurisdiction aren’t automatically made citizens when born in the US. According to USCIS:
A person born in the United States to a foreign diplomatic officer accredited to the United States is not subject to the jurisdiction of United States law. Therefore, that person cannot be considered a U.S. citizen at birth under the 14th Amendment to the United States Constitution. This person may, however, be considered a permanent resident at birth and able to receive a Green Card through creation of record.
The person born to a foreign diplomat is not a US citizen by birth because the child’s parent or parents are not subject to jurisdiction. So, what does that subject to jurisdiction mean, exactly?
What it means is the parent or parents can’t be arrested, handcuffed, detained, or charged with a crime—no matter how serious their actions—unless the country that sent the diplomat waives immunity.
Though the immigrant parent or parents are not diplomats, the concept of not subject to jurisdiction doesn’t mysteriously attain a new meaning in our legal system. It is a plainly understood concept that disdains wiggle room.
So, Trump is saying. is that the parents are not subject to jurisdiction. This means the parent or parents can’t be handcuffed, arrested, detained, charged with any crime, or taken to court. Our immigration laws would have no impact on these individuals, because they’re not subject to jurisdiction.
Ipso facto if Trump’s administration wants to continue removing birthright citizenship from the children of these immigrants, then his administration must agree not to handcuff, arrest, detain, charge, or take any other legal action against the child’s parent or parents. Since deportation is a legal action, the **US could not deport the parent.
Could the administration deport the children, instead? I don’t see how, according to our laws. If the administration wants to arrest, detain, and/or deport the child, they’d have to demonstrate the child was here in violation of immigration law, but how could they do so?
According to Cornell Law:
Infancy is an affirmative defense offered by a defendant in a criminal proceeding that the defendant did not have the mens rea necessary to be charged with the crime on account of their age. In other words, the defendant was too young to possess the capacity to understand the wrongfulness of their actions.
In other words, the child did not have the criminal intent to violate the law, and therefore hasn’t broken any law. Even without the infant defense, the baby did not enter the country illegally, they did not cross the border to our country illegally, they did not overstay their visa illegally…they’re just here. As if by magic. And we have no laws on magic.
Still, if Trump wishes to up his deportation numbers, he could deport the children…to the country of their birth. We can live with this.
*Most bonkers, if you ignore that whole Gulf of America thing.
**The executive branch can declare an individual as persona non grata and ask them to leave the country, but this concept is based on the fact that they were originally welcomed to the country, and it gets more twisty from there.
