Will Trump will be able to remove of birthright citizenship?
On Thursday, President Trump submitted a petition to the Supreme Court requesting that the injunctions that have been issued against his executive order to remove birthright citizenship be suspended. The emergency application does not make a request to the justices to decide the merits of the case; however, it is inevitable that they will be required to do so at some point in the future. It is possible that the majority of the justices will agree with my policy choice, which is that I am opposed to the concept of birthright citizenship for the children of undocumented immigrants. The court, on the other hand, will most likely come to the conclusion that a constitutional amendment, rather than an executive order, is required in order to make that policy constitutionally binding. The order that Mr. Trump issued about birthright citizenship applies to both illegal immigrants and those who are legitimately here in the United States on temporary visas. On the other hand, even if it were just relevant to undocumented immigrants, the court would most likely still rule that it is invalid.
In accordance with the 14th Amendment, citizenship is guaranteed to all those who are “born or naturalized in the United States, and subject to its jurisdiction.” In light of the fact that the term “jurisdiction” is not entirely clear, it is possible for reasonable people to hold divergent opinions regarding something. A well-established and unambiguous definition of the phrase “subject to the jurisdiction” of the United States of America was included in the legal terminology of the 19th century. In the case of Schooner Exchange v. McFaddon (1812), Chief Justice John Marshall explained that it meant that the individuals were subject to the laws of the United States. For breaking American law, is it feasible to be prosecuted with a crime and sentenced to incarceration in a jail in the United States? The United States of America had jurisdiction over you if this is the case. The vast majority of people living in the United States, including unauthorized immigrants, are affected by this. According to Marshall, “private individuals of one nation” who “disperse into another as business or whim may dictate” are considered to be “subject to the jurisdiction of” the nation in which they have dispersed.
Consequently, who was it that the 14th Amendment’s provision about jurisdiction did not apply to? Although it is generally accepted that all people living within a nation are required to comply with its laws, there are a few exceptions to this rule. Diplomatic immunity is granted to foreign ambassadors by the United Nations and their families. When a foreign force invades and subjugates the territory of another nation, the laws of the nation that invaded is applied to the territory that was conquered by the foreign military. A third exception was made for Indian tribes, which were considered to be quasi-sovereign entities that were not directly subject to the laws of the United entities. All people living in the United States, on the other hand, were subject to American sovereignty.
This knowledge is demonstrated by the discussion that took place in the Senate in 1866 on the citizenship clause. Senator Edgar Cowan, a Republican from Pennsylvania, was opposed to the provision for a specific reason: it would grant citizenship to the children of Chinese nationals and “gypsies,” who were of different races and cultures. Cowan’s interpretation was also endorsed by Senator John Conness, a Republican from California. In his statement, Conness noted that the plan states that “children born to Chinese parents in California… shall be citizens.” For the purpose of ensuring that all people born in the United States, regardless of their skin color, would be granted full and equal citizenship, Conness voted in favor of the amendment. It was agreed upon by those who supported the Citizenship Clause as well as those who opposed it that it applied to children born to foreign nationals. In the case of United States v. Wong Kim Ark (1898), the Supreme Court of the United States ruled that children born in the United States to foreign nationals are citizens by birthright. This ruling reaffirmed the situation. There has been no modification or qualification of the verdict by the court for more than 125 years.
Proponents of Mr. Trump’s directive make the correct observation that in the case of Wong Kim Ark, the parents were lawful permanent residents of the United States rather than undocumented immigrants. However, the reasoning behind the decision did not depend on this distinction. As a result of the fact that it was widely argued that Indigenous peoples were properly barred from birthright citizenship due to their divided national allegiances, they make reference to case law and legislative history concerning Native Americans. There were many who maintained that Indians had a certain degree of allegiance to their tribes, which meant that they were not completely subject to the government of the United States. Similarly, this line of reasoning contends that foreign nationals who are not permanent residents are not “fully” subject to the jurisdiction of the United States, and as a result, their children should not be granted citizenship because of their birthright.
This argument, on the other hand, is significantly convincing. Through the application of the divided-loyalty argument to other groups, it is suggested that children born in the United States to an American citizen and a foreign citizen should not be allowed birthright citizenship, nor should children born in the United States to dual citizens be granted citizenship. The Supreme Court of the United States, in the case of Harisiades v. Shaughnessy (1952), ruled that lawful permanent resident immigrants have conflicting loyalties. Despite this, the Trump order does not dispute the fact that their children who were born in the United States are citizens. The Indian nations were unique in their own right; their status as quasi-independent sovereign states made them stand out from other nations. The activities of an Indian tribe member who killed another Indian in Indian territory during the 1860s were normally not subject to prosecution in an American court because the conduct of the Indian tribal member were governed by Indian law. It was not possible for the United States of America to have jurisdiction over him legally. All Native Americans who were born in the United States were granted citizenship as a result of the Indian Citizenship Act of 1924. Assuming that an illegal or temporary alien is not completely subject to the laws of the United States, it is unclear why this exemption would apply to their offspring. Under the citizenship clause, it is determined whether the kid, and not the parent, is subject to the authority of the United States.
Another argument that supporters of Mr. Trump’s executive order have put out is that “birth tourism” is a practice that is considered to be unpleasant. On the other hand, there are more efficient ways to refrain from engaging in this practice. Any person who enters the United States with the intention of giving birth is subject to the possibility of being subjected to substantial financial fines and being deported automatically if they hold a short-stay visa.
Irrespective of other disagreements, one unquestionable consequence of the 14th Amendment is that children born in the United States to black people who were formerly enslaved are acknowledged as citizens of the United States. It was in violation of federal legislation that prohibited the importation of slaves that a large number of African Americans were brought to the United States in the year 1868. Although the Naturalization Act of 1870 made it possible for these “illegal” blacks to seek citizenship, the 14th Amendment did not include a provision that granted citizenship to them. Nevertheless, through the process of birthright citizenship, their children who were born in the United States were citizens. It is not possible to find any record from the 1860s that indicates the nationality of a black child’s parents or the legality of the parents’ presence was deemed to be relevant. Without a doubt, the youngster is an American if he was born in the United States of America.
