At Just Security, Ilya Somin: Birthright Citizenship and Undocumented Immigrants. From the introduction:
The incoming Trump administration may be preparing to deny citizenship rights to children of undocumented immigrants born in the United States. That’s according to recent reporting, a statement on Nov. 11 by a presidential transition member helping develop the new administration’s plans for the Justice Department, and a “Day One” video made by President-elect Trump during the campaign (incoming border czar Tom Homan also supports ending birthright citizenship). According to the New York Times, “the team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship.”
Such policies would be a blatant violation of the Fourteenth Amendment, both the text and the original meaning. Section 1 of the Amendment grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” There is no exception for children of illegal migrants. There is broad agreement on that point among most constitutional law scholars, across the ideological and methodological spectrum.
Agreed (and I appreciate the cites later in the post to my birthright citizenship article and recent post on this blog).
As Professor Somin says, this issue is likely to end up in court if the Trump administration pursues it, and it should be an easy call for originalist-oriented judges and Justices. On the other hand, for nonoriginalists, the case against birthright citizenship in light of modern circumstances (which are quite different from the time the Amendment was adopted) might seem considerably stronger. So I'll be looking to see if originalist critics suddenly decide that the original meaning is quite clear and must be followed in this case.
Posted at 6:02 AM