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Trump’s birthright citizenship position contrary to 14th Amendment and U.S. Supreme Court precedent, KU law professor says

Nick Gosnell
Tuesday, October 30, 2018

President Donald Trump said in an interview that he wanted to end the practice of birthright citizenship. A constitutional law professor from the University of Kansas says such an action would be in violation of the 14th Amendment to the Constitution.

“The 14th Amendment to the United States Constitution guarantees that all persons born in the United States or naturalized by law are citizens of the United States and citizens of the state in which they reside,” said said Lumen “Lou” Mulligan, Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas.

The specific language of the amendment is as follows:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Mulligan says the amendment was tested and there is U.S. Supreme Court precedent.

“The United States Supreme Court addressed this very question in 1898, in a case called United States v. Wong Kim Ark,” said Mulligan. “In that case, Mr. Wong’s parents were Chinese immigrants who had not been naturalized, but they were living in San Francisco. Mr. Wong was born in San Francisco. He went to China to visit relatives. Upon his return to the United States, immigration officers tried to prohibit him from entering the United States. He said no, I’m a U.S. Citizen. They said no, you can’t be a U.S. Citizen because your mom and dad weren’t U.S. citizens. The case went to the Supreme Court. The Supreme Court said no, he’s a citizen.”

The Supreme Court held in a 6-2 decision that a child born in the United States to parents of foreign descent is a citizen of the United States unless the parents are: 1) foreign diplomats, or 2) the child was born to parents who are nationals of an enemy nation that is engaged in a hostile occupation of the country’s territory.

President Trump’s assertion in an interview with Axios that he can get rid of birthright citizenship with an executive order is fundamentally wrong, barring a series of incredibly unlikely events.

“This would be a position where you would have to overrule the United States Supreme Court,” said Mulligan. “Every lower court’s going to find President Trump’s action unconstitutional. The United States Supreme Court would then have to overrule its 1898 precedent, and then, having overruled that, it would have to decide that the original meaning is not what the plain text says. That’s a lot.”

A 2012 paper in the Harvard Human Rights Journal asserted that as of that time, review of the constitutions and nationality laws of the 35 nations in the Western Hemisphere demonstrated that 30 of these countries provide birthright citizenship automatically to children of any immigrants.

Faculty name: 
Lumen Mulligan