Ben Shapiro says it’s dicey whether an executive order can overturn birthright citizenship and that it hinges on the “subject to the jurisdiction thereof” part of the Amendment. Shapiro claims this phrase was specifically added to prevent the children of Native Americans from becoming citizens and also to prevent the children of foreign diplomats and foreign soldiers from becoming citizens. Shapiro doubts the framers meant to include children of illegal immigrants.
- Did framers intend to give citizenship to US-born children of illegal immigrants?
- Should we follow what the framers intended on this issue to begin with?
- Can an executive order end birthright citizenship?
On Monday, President Trump announced to Axios on HBO that he would pursue an executive order to outlaw birthright citizenship just before the election. “It was always told to me that you needed a constitutional amendment,” Trump stated. “Guess what? You don’t.” He then added, “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order…We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States…with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”
Trump isn’t wrong that the United States is one of only two developed countries to maintain birthright citizenship (the other is Canada). But it’s dicey whether an executive order could simply change birthright citizenship, or whether an act of Congress could.
At issue is the interpretation of the 14th Amendment, which provides:
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.
The key phrase here is “subject to the jurisdiction thereof.” As Ilya Shapiro of CATO Institute points out, that phrase was originally written to exclude the children of Native American tribes from American citizenship – since those children were subject to the jurisdiction of Native American governance – as well as the children of foreign diplomats and soldiers from abroad fighting on American land. The amendment was specifically written in order to guarantee the citizenship of freed slaves and their children, in order to abrogate the Supreme Court’s despicable Dred Scott ruling. Senator Jacob Howard (R-MI) explained the purpose of the “subject to the jurisdiction thereof” provision: