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Constitutional Rights Protect the Undocumented and Their Children [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-01-08
Donald Trump has announced a number of legally questionable goals once he is President again including taking control over Greenland and the Panama Canal, territories that belong to other countries. His most contentious proposals include using the military forcibly deport undocumented immigrants and to remove citizenship status from their children born in the United States. Both of these proposals challenge established constitutional provisions under the 14th Amendment. The 14th Amendment was adopted in 1868 after the Civil War to protect the rights of emancipated slaves and Section 1 of the amendment contains two fundamental principles governing Congress, the President, the Courts, and the States.
“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.” This clause established that anyone born here was automatically a citizen, or birthright citizenship.
“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.” This clause establishes that persons, not just citizens, have a right to legal due process. This means that any undocumented immigrant who is within the territorial United States cannot be expelled without a fair trial where the prosecution must establish that they are in violation of U.S. law. This is an important legal doctrine written into the Constitution because prior to the end of slavery state and federal fugitive slave laws denied due process to people accused of fleeing enslavement and summarily returned freedom-seekers to the people who claimed to own them.
During his first term in office, President Trump said he planned to issue an executive order to repeal birthright citizenship, a law he described as “ridiculous.” More recently, during an “Axios on HBO” interview, Trump claimed "It was always told to me that you needed a constitutional amendment. Guess what? You don't. You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order." On Twitter, Trump, now a legal scholar, expounded that birthright citizenship is “not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof’.”
Major Supreme Court decisions have established that Donald Trump is wrong.
In 1898, in the case of United States v. Wong Kim Ark, a 6-2 majority of the Supreme Court ruled that because Wong was born in San Francisco, although neither of his parents were citizens and he had traveled to China, was a citizen of the United States by birth under the 14th Amendment because while in this country he was subject to U.S. laws. In the 1982 Plyler v. Doe case, a majority of the Supreme Court blocked an attempt by Texas to deny state funding for the education of children of undocumented immigrants. Even the dissenting Justices agreed that the
“Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.”
There are legal processes for losing citizenship, but government cannot summarily take it away. The Civil War Era Enrollment Act of 1865 set draft evasion and desertion from the military as reasons for losing citizenship rights. Citizenship can legally be renounced, but it must be done by the individual. The Expatriation Act of 1868 established the right to renounce one’s citizenship is a “natural and inherent right of all people.” In 1907, Congress extended the renunciation provision of the Expatriation Act to involuntarily remove citizenship rights from women who married non-United States citizen, but this was repealed by the Nationality Act of 1940.
In a December 2024 Meet the Press interview Trump claimed that the United States is the only country with birthright citizenship. Once again, Trump was wrong. Laws in every country in the Western Hemisphere except for Colombia provide for automatic birthright citizenship. Most Western European countries grant birthright citizenship but require some conditions. A child born in Italy is automatically a citizen if one parent’s ancestors was a citizen, or if the child lived in Italy until its 18th birthday, or when the person reaches is 21 and has lived in Italy for at least three years. In the United Kingdom, a child receives citizenship if one parent is a citizen or legally settled in the country or once the child has lived in England, Scotland, Wales, or Northern Ireland for 10 years. Similarly, in France a child is a citizen if one parent is a French citizen or was born in France or upon their 18th birthday if they have lived in France at least 5 years since age 11.
Supreme Court Chief Justice John Roberts in his end of the year report released what might have been a veiled warning to Trump to respect court rulings. Robert asserted “Every administration suffers defeats in the court system — sometimes in cases with major ramifications for executive or legislative power or other consequential topics. Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed.”
Roberts is concerned because “Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”
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