Gerald L. Neuman (Harvard Law School) has posted Lessons for Birthright Citizenship from Suspension of Deportation (188 pages) on SSRN. From the abstract:
Although much has been written about why Donald Trump’s Executive Order purporting to abolish birthright citizenship for children of unlawfully present or temporarily present parents violates the Citizenship Clause of the Fourteenth Amendment, there is a prior issue that has received less discussion: the Executive Order also violates the Immigration and Nationality Act. This article examines that statutory issue through the lens of one particular but revealing aspect of the voluminous evidence, the law and practice of suspension of deportation for noncitizen parents of children born as citizens while their parents were unlawfully or temporarily present in the United States.
In particular, Neuman details “examples that confirm the strength of the jus soli rule, recognizing the US citizenship of children born to Japanese parents brought temporarily to the United States from Latin America for internment as enemy aliens during World War II.” These examples are consistent with longstanding interpretations of the English common law rule of the natural born for children born to interned alien enemy civilians, as explained here.
MICHAEL RAMSEY adds: I discussed the statutory issue briefly here in connection with the Court’s cert grant. I think it’s entirely possible (and perhaps preferable) for the Court to decide that the Executive Order is contrary to the original meaning of the Act and not reach the constitutional issue.
Posted at 6:08 AM