ARLENE VIOLET - Birthright citizenship is not a cut and dry proposition

ARLENE VIOLET - Birthright citizenship is not a cut and dry proposition

Perennially, the common law concept of JUS SOLI-or birthright citizenship-comes back into the news. President Donald Trump has thrust the issue full stage and center when he proposed that he will stop the automatic granting of citizenship to most people born on U.S. soil by executive order. Some commentators, including U.S. House Speaker, Paul Ryan , have scoffed at such a notion stating that an executive order cannot overrule an Amendment to the U.S. Constitution. These folks point to the 1868 ratification of the 14th Amendment which begins,”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.” More careful scholars like Dr. Patrick Conley, Constitutional lawyer and R.I. Historian Laureate, see the potential Executive Order, if crafted properly, not as an “overruling” of the 14th Amendment (which the President could not do) but as a consistent interpretation of the 14th Amendment , particularly focusing on the clause, “subject to the jurisdiction thereof.”

Let me be clear right here. Neither he nor I are advocating for such an executive order. In fact, I am appalled by the treatment and demonization of immigrants which I view as an aberration of the Spirit of America. I asked Dr. Conley for his legal opinion since I also viewed that such an executive order could very well be legally crafted.

Dr. Patrick Conley said that such an executive order is not a cut and dry proposition. He queries whether somebody in this country illegally can be regarded as “subject to the United States jurisdiction”. He answers his own question by noting that they probably are not. He told me that United States Supreme Court justices (where this matter will no doubt land for an ultimate decision) could rule that the child of an undocumented immigrant who has purposely disregarded American immigration law does not have birthright citizenship because the mother never personally accepted U.S. jurisdiction. Dr. Conley further noted that the Court should also rule that a child born of a foreign national, who was in the United States on a legal issued visa or work permit, could be a citizen if born during the period of such legal entry.

Case law exists currently about the phrase “subject to the United States jurisdiction”. For example, diplomats from foreign countries who are here representing their countries are not “subject to our jurisdiction” in the technical sense since they are here as functionaries of their own government. Similarly, if a child is born to one of our diplomats abroad, the child is a U.S. citizen since his parent(s) are in that foreign country precisely to represent the United States.

Mr. Trump has asserted that no country grants automatic citizenship to children of illegal entries. That claim is incorrect since 30 of the world’s 194 countries do so. The trend, though, has been to stop the automatic grant. As Dr. Conley noted, Ireland, Australia and New Zealand have ceased such a practice by rescinding automatic citizenship.

The President could curb his instinct for going overboard by a carefully crafted order. The President has conservative allies on the Supreme Court, including the 2 whom he has appointed so the President’s action should not be peremptorily dismissed .This issue of “automatic citizenship “will and should be debated. It is not a spurious discussion.

Violet is an attorney and former state attorney general.