Trump May Be on Solid Legal Ground With His Stance on Birthright Citizenship

Josh Hammer, a senior editor-at-large for Newsweek, presents a compelling case

By Denise Rivette

The Los Angeles Times published a piece on January 30 entitled Opinion: Trump’s Executive Order on Birthright Citizenship is Legally Sound by Josh Hammer, a senior editor-at-large for Newsweek. Citing President Donald Trump’s executive order (Protecting The Meaning And Value Of American Citizenship) and legal precedent, Hammer reasons that Trump is legally correct regarding the 14th Amendment to the U.S. Constitution. He introduces his position with the following paragraph:

“Like the Bourbons of old, pearl-clutching American elites have learned nothing and forgotten nothing. Because when it comes to birthright citizenship, the virtue-signaling and armchair excoriation is not just silly; it’s dead wrong on the law. Trump’s Jan. 20 executive order on birthright citizenship is legally sound and fundamentally just. He deserves credit, not condemnation, for implementing such a bold order as one of his first second-term acts.”

He supports his position with the Citizenship Clause of the 14th Amendment that remedied the 1857 Dred Scott decision made by the Supreme Court:

“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 Citizenship Clause was refined by the Civil Rights Act of 1866, which stated in part:

“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States”

Hammer continues through the court cases that shaped our understanding of citizenship from the 1873 “slaughterhouse cases” through the 1884 case of Elk vs. Wilkins to “an oft-cited 1898 case, United States vs. Wong Kim Ark.”

A significant legal sticking point exists throughout this history around the phrase “and subject to the jurisdiction thereof.”

Excerpt from the Majority Opinion in the matter of United States vs. Wong Kim Ark

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution, “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.” . . .

According to Hammer, “The court repeatedly emphasized that its holding applied only to children of those legitimately ‘domiciled’ here.” However, that definition expanded in the early 1980s when Plyler v. Doe was decided on a 5-4 vote. “…the court dropped in a superfluous footnote indicating that Wong Kim Ark also applies to the children of people in the U.S. illegally. But this nonbinding footnote from Justice William J. Brennan Jr., a leading liberal, does not the ‘law of the land’ make.”

You can read Josh Hammer’s complete opinion piece HERE.