1/ I’ll weigh in here to say a few things about this issue. The first is that this issue is not one that has been directly tested or addressed by our courts. And the final interpretation here rests with #SCOTUS.
2/ The President proposes to interpret that part of the 14th Amendment which excludes persons not subject to US jurisdiction from Birthright Citizenship. His view as I take it is that children born to unauthorized immigrants are excluded from Birthright under this exception.
3/ We have long relied upon the #SCOTUS decision of Wong Kim Ark (1898) for the view that even the children of noncitizens, when born in the US, are citizens by Birthright.
4/ Coukd #SCOTUS revisit its own precedent in Wong Kim Ark and rule that children of non citizens are not Birthright citizens. It would be a departure from precedent, but it is possible.
5/ More likely #SCOTUS could distinguish from Wong Kim Ark on the facts. Wong’s parent were authorized or we might say legal immigrants. Their presence in the US was authorized. Wong Kim Ark did not directly address the status of children born to unauthorized immigrants.
6/ A narrowly tailored EO that rested on the view that the children of unauthorized immigrants are not subject to the jurisdiction of the US (in citizenship terms) and thus not citizens by virtue of Birthright is an argument that can be made.
7/ I’ll leave it others to parse whether the President can bypass Congress on this and in essence legislate the terms of the 14th Amendment via an EO. My point is that his proposal raises a question that courts will need to resolve.
8/ My view is that this sort of wholesale or categorical exclusion is contrary to the spirit of the 14th Amendment which aimed to expand and open a way for citizenship, especially for those who might otherwise be denied because of racism. The case being former slaves.
9/ We are facing a contest over what categories of persons are excluded from Birthright citizenship. Congress intended that children born in the US to parents who were foreign diplomats or parents who were members of an occupying army would not be Birthright Citizens.
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