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Trump plan to end birthright citizenship is more conceivable in second term
(www.theguardian.com)
this post was submitted on 15 Dec 2024
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Amendments can only be taken away through a 2/3s vote in congress. Being that the split is damn near 50/50 he will never get the votes to remove the Amendment. Executive orders cannot supercede amendments either.
Or a constitutional convention, which would require 2/3 of state governments calling one. With a little more voter suppression and blatant gerrymandering (now sanctified by a 6-3 Supreme Court majority), that goal is within reach, and could lead to many other “reforms”.
That isn't necessary. Birthright citizenship is based on the 14th Amendment, which states:
The key clause here is "subject to the jurisdiction thereof." This clause has long been interpreted broadly, with few exceptions. Think foreign diplomats that have diplomatic immunity, or the hypothetical case of a foreign army invading US soil. But with very few exceptions, it has been interpreted that anyone on US territory is "subject to the jurisdiction" of the US. Thus, even the children of illegal immigrants gain citizenship at birth.
But note, nowhere does it actually explicitly say, "anyone born on US territory is a US citizen, full stop." All SCOTUS has to do is to rule that "subject to the jurisdiction thereof" means "in the US legally." So if you're a foreigner here on a valid visa, and you have a kid, that kid gets citizenship. But if you're not here legally, then your kid doesn't get citizenship. Conservative legal theorists have already written elaborate legal theories backing up such an interpretation. All SCOTUS has to do is to adopt those interpretations.
The Supreme Court has ruled that even the children of illegal immigrants get automatic citizenship since 1898, but that interpretation could be changed at any time. It's not like the present court has a great deal of respect for precedent. Roe v. Wade was the law of the land for 50 years, and striking it down stripped civil rights from half the population. Ending birthright citizenship would harm fewer people than rulings the court has already recently made.
I have a question about this that I have been thinking about. If they did this, probably through executive order, Would they not create a situation that the US federal government does not have jurisdiction over illegal immigrants? The federal government has jurisdiction or it doesn't, there is not an in-between. This would shift jurisdiction to the states, which would be a nightmare for the people trying to do this. I suppose you could change the meaning of the word "Jurisdiction", but since it is in the constitution, that would effectively change the meaning in all federal law, also a nightmare scenario. The only way I can see this type of order or law passed, without amending the constitution, would be to pass the law and try to stall it to deport as many as you could. I think this would not work also, due to lower court judges stopping it, and forcing the supreme court to take it up. Then I guess it would take some mental gymnastics for them to get it passed and not start a civil war.