Trump Considers Ending Anchor Baby Loophole

Fierce legal challenges expected.

Days before the midterm elections, President Trump has sparked another controversy regarding his hardline position on illegal immigration. The president said, during an exclusive interview for “Axios on HBO,” that he is considering issuing an executive order to end what some have called the “anchor baby” loophole. The president says that it is time to take on the claim of an unfettered constitutional right to citizenship for babies born in the United States to illegal immigrant parents. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” President Trump said. “It’s in the process,” he added. “It will happen with an executive order.” White House and Justice Department attorneys are reportedly studying the legal issues involved with such an executive order. Thus, at this point, it is only an idea that may find political resonance, especially among voters concerned with the Central American invasion forces continuing to make their way towards the United States.

Many legal experts believe that an executive order by President Trump to end citizenship for children born in the United States to aliens in this country illegally would be unconstitutional. They cite the first sentence of the 14th Amendment to the Constitution, which 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.” The phrase “all persons,” the argument goes, literally means any babies born within the sovereign territorial boundaries of the United States. The foreign nationality or legal status of the parents is irrelevant, according to this expansive interpretation, unless a change is made via a constitutional amendment.

We can expect court challenges from progressive lawyers to any executive order seeking to curtail birthright citizenship. The ACLU tweeted: “The 14th Amendment’s citizenship guarantee is clear. You can’t erase the Constitution with an executive order.” The radical left group accused President Trump of engaging in “a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms.”

However, progressive lawyers are not the only ones raising concerns. Even some conservative lawyers, who deem themselves originalists when it comes to interpreting the Constitution, have declared that the president cannot change by executive order the birthright to citizenship of any “persons” born in the United States as enshrined in the 14th Amendment. Dan McLaughlin, an attorney and online contributor to National Review, for example, argued that “a proper originalist interpretation of the U.S. Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions.” He based his argument on both the text and legislative history of the 14th Amendment, as well as on Supreme Court precedent. Mr. McLaughlin added that any exceptions would be limited to instances considerably narrower than all babies born in the United States to illegal immigrants, such as babies of foreign government officials who still owed their allegiance to foreign governments.

The leading Supreme Court case cited by birthright citizenship advocates is _United States v. Wong Kim Ark_. This case was decided back in 1898, but still stands as a binding precedent unless and until overruled. In _W_ong Kim Ark, it should be noted, the Supreme Court was dealing with a child born in the United States to Chinese parents in the country legally, not to illegal immigrants. “A child born in the United States, of parents of Chinese descent,” the Supreme Court majority opinion stated, “who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil (sic) and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.”

The _W_ong Kim Ark case reasoning, at least with regard to the broad interpretation of the term “persons” as used in the 14th Amendment, was extended by the Supreme Court to apply to illegal alien children in a case decided in 1982. “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term,” the Supreme Court held in the 1982 case, Plyler v. Doe. “Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” The 1982 case did not involve the citizenship birthright issue itself, but the case extended 14th Amendment rights to illegal immigrant children relating to free public education that Texas was offering to other children residing legally within its borders. The majority opinion held that Texas had not shown a sufficiently substantial state interest to justify discriminating against children who happen to be illegal aliens.

Supreme Court case holdings are binding precedents but are not immutable. They can also be distinguished. The 1898 _W_ong Kim Ark case applied to a baby born in the United States whose foreign parents were in the United States legally at the time of their baby’s birth. It could be argued that the Wong Kim Ark holding should not apply to the happenstance of a birth in the United States to parents here illegally at the time of the birth. The wrongful circumstances under which the birth occurred in the United States to illegal aliens who should not have been in this country in the first place to give birth would arguably negate any finding that their children so born in the U.S. are legally “subject to U.S. jurisdiction” as required by the 14th Amendment or automatically entitled to its protections. Under this line of reasoning, the illegal presence of a pregnant parent should not be rewarded with citizenship for the parent’s children because it would encourage circumvention of the basic principle and purpose of the United States’ jurisdictional sovereignty. This is especially the case where it can be shown that aliens have entered the United States illegally for the express purpose of having their babies in the United States in order to game the system. 

As for the 1982 Supreme Court case extending the definition of “person” in the 14th Amendment to illegal aliens in the context of equal rights to education, it may not survive if a similar case comes before the current conservative-leaning Supreme Court. It could be overruled altogether on the grounds that the majority opinion did not take sufficient account of the state’s interest in making reasonable distinctions between legal and illegal residents in allocating scarce resources for public education. Even if the Supreme Court would not go that far, the 1982 case was dealing with a different portion of the 14th Amendment involving equal protection rights. It did not deal with the specific issue of defining the scope of birthright citizenship under the first sentence of the 14th Amendment. It did not address the ruling of the Wong Kim Ark case directly at all, which only applied the birthright citizenship clause to children born in the United States to parents who were domiciled in the country legally at the time of the child’s birth.

However, even if the Supreme Court would be inclined towards a narrower interpretation of the birthright citizenship clause as only applying to the children of parents residing in the United States legally, the question still remains whether President Trump has the authority to issue an executive order on this matter. Section 5 of the 14th Amendment vests in Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Congress has not legislated on the enforcement of the birthright to citizenship clause of the 14th Amendment. Nor has Congress passed a bill to limit its scope, which the Supreme Court could then adjudicate as to the constitutionality of such a law. A congressional statute setting parameters around the birthright to citizenship clause for enforcement purposes would stand a far better chance of surviving judicial review than an executive order alone. It would also have more permanence.

That said, Congress has legislated regarding immigration more generally, including delegation of certain powers to the president, which Congress can do pursuant to its own constitutional authority.

In upholding President Trump’s temporary ban on travel of foreigners to the United States from certain countries, the Supreme Court recently ruled that the president of the United States has broad discretionary authority under the Immigration and Nationality Act (INA) to issue a proclamation that would “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). It may be a stretch, but President Trump could possibly issue an executive order suspending entry of all aliens from Central America until an orderly process for handling asylum requests can be established at established ports of entry. In that connection, the executive order could include a directive to the executive branch that no birth certificate listing birth in the United States of a child born in the United States to illegal aliens who managed to get into this country despite the suspension order will be recognized by any executive branch agency. That could mean barring the issuance to the child of a social security card or a U.S. passport, refusing to grant visas to family members of the child based on chain migration, or the refusal of federal government benefits.  

Whether President Trump decides to issue such an executive order remains to be seen, as well as its timing if he does decide to go ahead. He may simply be using the “anchor baby” issue to make a political point in advance of the midterm elections and is baiting the press and Democrats to holler and scream. If the president does follow through with what many legal scholars would consider to be a long shot idea, he can expect an all-out legal challenge. But who knows? The challenge would inevitably have to be resolved by the Supreme Court, which thankfully now includes Justice Kavanaugh.