At the UnPopulist, Paul Gowder (Northwestern): The Bogus Case Against Birthright Citizenship for the Children of Undocumented Immigrants. From the introduction:
As Inauguration Day approaches, President-elect Donald Trump’s promise of mass deportation at an unprecedented scale and the infighting within his own movement over H-1B visas have understandably taken center stage. But it’s also worth focusing on what is perhaps his most brazenly unconstitutional proposal of all: ending birthright citizenship, the legal principle that confers automatic citizenship to anyone born on U.S. soil. As far as Trump and the immigration hawks he is bringing into the administration—like his notorious former immigration czar and incoming Homeland Security Advisor Stephen Miller—are concerned, birthright citizenship should not be extended to U.S.-born children of undocumented immigrants.
“We have to end it,” Trump told Meet the Press’ Kristen Welker last month. “We’re the only country that has it,” he erroneously added (dozens of countries—including Canada, Mexico, and Brazil—also recognize birthright citizenship). This wasn’t one of Trump’s extemporaneous flights of rhetorical fancy—in May of 2023, Trump promised to issue an executive order on Day One to end what he called “automatic citizenship for children of illegal aliens.” When Welker asked him point blank if that’s still his plan, Trump responded, “Yeah. Absolutely.”
But if the president-elect believes he will be able to unilaterally undo this policy by executive fiat, he is sorely mistaken: birthright citizenship is clearly established in the U.S. Constitution, which means a presidential order cannot abolish it. …
There's nothing much new here but it's a good summary of the textualist/originalist case for birthright citizenship and a useful consideration of the leading counterarguments. (My longer assessment is here.)
The key, though, is that the argument mostly depends on adopting textualist originalism as the guiding approach to constitutional interpretation (and recognizing that textualist originalism does produce determinate results in contested cases). Otherwise, as co-blogger Mike Rappaport has argued, the nonoriginalist case against birthright citizenship for children of undocumented immigrants is fairly strong.
Posted at 6:06 AM