There are 11 million illegal immigrants in America.
They have 300,000 babies a year.
All of them automatically become US citizens.
But now Donald Trump wants to change that... with an executive order.
Hi, welcome to America Uncovered.
I'm your host Chris Chappell.
President Trump once again has people asking...can he...do that?
At the end of October,
Trump sat down with Axios to talk about immigration
and revealed he's thinking about ending birthright citizenship.
"On immigration, some legal scholars believe
you can get rid of birthright citizenship without changing the Constitution…"
"With an Executive Order…"
"Exactly…"
"Right."
"Have you thought about that?"
"Yes"
"Tell me more"
"It was always told to me
that you needed a Constitutional Amendment.
Guess what?
You don't -- number one.
Number one you don't need that....
"
"I mean that's in dispute.
That's very much in dispute"
"Well, you can definitely do it with an Act of Congress.
But now they are saying I can do it with an Executive Order.
Now how ridiculous...
we are the only country in the world,
where a person comes in and has a baby,
and the baby is essentially a citizen of the United states
for 85 years with all of those benefits.
It's ridiculous.
It's ridiculous.
And it has to end.
"
"Have you talked about that with counsel?"
"Yeah.
I have."
"So where in the process…"
"It's in the process, it will happen...
with an Executive Order
that's what you are talking about.
It's interesting.
I didn't think anybody knew that but me.
I thought I was the only one.
Jonathan…
I'm impressed."
"I've got a good guess.
Good guess."
"I'm impressed."
Aww, I feel like they really had a moment there.
Birthright citizenship is something Trump spoke about on the campaign trail.
But many Republican Party officials expressed concern
that this issue that could cost Republicans the Latino vote.
So a lot of people thought Trump wouldn't bring it up again.
But they forgot: Controversial is Donald Trump's middle name.
Just kidding.
His middle name is John.
So what is birthright citizenship?
As it's interpreted now,
it means any child born within the borders of the United States
is automatically a US citizen
including children born to parents who are in the country
illegally, on a temporary visa, or as tourists.
It comes from the 14th Amendment which says,
"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."
Obviously anything to do with immigration
creates a lot of strong feelings on both sides.
Birthright citizenship has been challenged before,
by both Democrats and Republicans.
For clarity: The controversy here
is not really about whether the children of immigrants
should become US citizens.
It's been that way for a long time.
The issue now is mainly about whether
the children of illegal immigrants should.
In 1993, Democratic Senator Harry Reid
introduced this bill to limit birthright citizenship.
At the time, he said,
"If you break our laws by entering this country…
Wait, hold on.
Is that in Fox News?
Fox News is quoting a Democrat to prove their point.
It truly is an age of wonder.
Anyway, Harry Reid said,
"If you break our laws by entering this country
without permission and give birth to a child,
we reward that child with U.S. citizenship.
And guarantee of full access
to all public and social services this society provides
and that's a lot of services."
That was 25 years ago,
and Reid later changed his stance on birthright citizenship.
But today birthright citizenship is no less controversial.
Omar Jadwat, director of the ACLU's Immigrants' Rights Project,
wrote, "The president cannot erase the Constitution
with an executive order.
This is a transparent and blatantly unconstitutional attempt
to sow division and fan the flames of anti-immigrant hatred."
While Democratic Congresswoman Nancy Pelosi
released a statement that starts out
talking about birthright citizenship,
and ends up attacking Republicans on healthcare.
Now that is a seasoned politician.
On the other side,
Jessica Vaughan, the policy director at Center for Immigration Studies
said, "there are legitimate legal questions
about how we have interpreted [birthright citizenship]
in many different scenarios."
And Republican Senator Marco Rubio
said about Trump's announcement,
"Everybody should take a deep breath.
Let's take a deep breath here for a minute."
Ahhhhhh.
Yeah, I don't feel any better.
So let's go back to the 14th Amendment for a moment.
Now no one is arguing
that if your parents are citizens or legal residents,
you shouldn't get to be a citizen.
Well, except for me.
I think things should be run more like Starship Troopers,
where you only get citizenship if you fight giant space bugs.
"Join the mobile infantry and save the world.
Service guarantees citizenship."
Things would be so much simpler
if this were the only alien we were arguing about.
Anyway, it's this part of the 14th Amendment
that's the sticking point: "and subject to the jurisdiction thereof."
What does that mean?
If you're born in the US,
aren't you also subject to its laws?
Isn't anyone in the United States,
even an illegal immigrant,
subject to US laws?
Isn't that just redundant?
Well, this is where it gets complicated.
The 14th Amendment was originally about
granting citizenship to former slaves.
Before the 14th Amendment,
the 1857 Supreme Court ruling on the Dred Scott case
had said people of African descent are not entitled to citizenship,
regardless of where they were born,
or whether they were slaves or free.
But one bloody civil war later,
the 14th Amendment was ratified
and that part of the Dred Scott ruling was overturned.
The reason the phrase
"and subject to the jurisdiction thereof"
was added to the 14th Amendment
was thanks largely to Senator Jacob M. Howard.
He argued that it wasn't redundant,
but clarified the meaning of
"All persons born or naturalized in the United States."
In other words, according to the Senator,
"This will not, of course, include
persons born in the United States who are foreigners, aliens,
who belong to the families of ambassadors
or foreign ministers accredited to the Government of the United States,
but will include every other class of persons.
It settles the great question of citizenship
and removes all doubt as to what persons are
or are not citizens of the United States."
Clearly, it did not remove all doubt.
But Senator Howard's main purpose
was to exclude American Indians
who were subject to the jurisdiction of their tribe,
and therefore not "subject to the jurisdiction" of the United States.
Don't you love legalise?
So, in its original interpretation,
the 14th Amendment excluded a lot of people.
That interpretation did not last forever, though.
But not because of concerns from Indians
or even African Americans.
It was actually a Chinese man, Wong Kim Ark.
At the time, Chinese people weren't allowed
to become US citizens because of the Chinese Exclusion Act.
In an 1898 US Supreme Court case,
Wong argued that since he was born in the US
and his parents had permanent domicile,
he was entitled to citizenship.
In a 6-2 ruling, the Supreme Court agreed with him.
Then, in 1924, Congress passed the Indian Citizenship Act,
granting citizenship to all American Indians.
And in 1982, using the United States v. Wong Kim Ark as a precedent,
the Supreme Court ruled on the case of Plyler v. Doe.
Texas had passed a state law denying funding
to K through 12 schools for educating children of illegal immigrants.
The Supreme Court struck it down.
The majority opinion wrote that the law
was unfair because children of illegal immigrants
didn't have a choice about whether to be in the country.
In addition, the judges were concerned that
denying these kids an education would lead to
"the creation and perpetuation of a subclass of illiterates
within our boundaries, surely adding to the problems
and costs of unemployment, welfare, and crime."
Now however you feel about that,
the case only dealt with a very specific situation: School funding.
According to the Congressional Research Service,
"The courts apparently have never ruled
on the specific issues of whether the native-born child
of unauthorized aliens,
as opposed to the child of lawfully present aliens,
may be a U.S. citizen."
So President Trump's challenge to birthright citizenship
could result in exactly that clarification.
As the libertarian think tank the Cato Institute points out
"Illegal aliens and their children can be prosecuted
and convicted under US law,
unlike diplomats, or foreign invaders,
and the countries of origin can hardly
make a 'jurisdictional' claim on kids born in America."
But that still is a relatively recent interpretation.
John Eastman, a constitutional scholar
and director of Chapman University's
Center for Constitutional Jurisprudence,
told Axios "Until the 1960s, the 14th Amendment
was never applied to undocumented or temporary immigrants."
And he told the Epoch Times,
"Near as I have been able to determine,
a bureaucrat changed the form in the passport office
to exclude questions about a child's parental status at his birth.
That had previously been a key part of the passport application,
which required proof of citizenship."
But really, how big an issue is this?
Are there that many children of illegal immigrants
who are getting automatic citizenship?
Well, according to the Pew Research Center,
there were tens of thousands each year in the 80s,
eventually reaching a peak of 370,000 a year in 2007.
It's gone down a little bit since then.
So under the current policy,
these 2 to 3 hundred thousand children born each year
are immediately entitled to the same rights as any other US citizen.
They potentially get food assistance
and other welfare benefits that can be collected
on their behalf by their parents,
even though the parents are illegal immigrants.
"Many of the welfare costs associated with illegal immigration,
therefore, are due to the current birthright citizenship policy."
In 2012 that meant that 62%
of illegal immigrant headed households
were on some form of welfare.
It's greater in some states.
In 2013, according to then Los Angeles County Supervisor
Michael D. Antonovich, "the total cost
for illegal immigrants to county taxpayers
exceeds $1.6 billion dollars a year."
Then there's the issue of birth tourism.
People visiting to the US just to have their kids here.
More on that after this short commercial break.
Birth tourism.
As the Center for Immigration Study says,
"An entire industry of 'birth tourism' has been created
and the phenomenon of pregnant women traveling (legally)
to the United States specifically for the purpose
of giving birth on U.S. soil
has grown largely without any debate
in Congress or the consent of the public."
Birth Tourism has become a big business from Russia,
China,
even countries like Nigeria.
There are no clear statistics
on how much birth tourism there is,
and it's something the US government is trying to stop.
Because it can have far reaching consequences.
At 21 years old,
a US citizen can sponsor their extended family,
who can then in turn sponsor their extended family.
Of course, that's two decades from now, so...
it'll be someone else's problem.
Of course, that's what they said 20 years ago.
The question today is,
can Trump change all this with an executive order?
Well, he can't change the constitution with one.
In order to make a constitutional amendment,
it requires support from two-thirds of Congress
as well as ratification from three-quarters of states.
But Trump might not need a constitutional amendment.
According to Michael Anton,
a former spokesman for Mr. Trump's National Security Council,
"An executive order could specify to federal agencies
that the children of noncitizens are not citizens."
And according to the Heritage Foundation,
"The president has the constitutional authority
to direct executive agencies to act in accordance
with the original meaning of the Citizenship Clause,
and to direct agencies to issue passports,
Social Security numbers, etc., only to those
whose status as citizens is clear under the current law."
Of course, whatever Trump does
will almost certainly be challenged in court.
And eventually it may go the US Supreme Court.
A Supreme Court that currently has a 5-4 conservative lead
with two Justices appointed by President Trump.
Of course there's another possibility.
Senate Republican Lindsey Graham
has said he will also introduce legislation
to end birthright citizenship to illegal immigrants.
Congress has already set a precedent
that they can interpret who falls under the 14th Amendment.
That's what they did with the Indian Citizenship Act of 1924.
So that's another way the Trump administration
could end birthright citizenship for illegal immigrants
without changing the constitution.
Of course, a congressional decision could always
get sent to the Supreme Court as well, but…
However it happens,
it looks like a strong possibility
we will be seeing some new
—or at least clearer—
rules about who counts as "subject to the jurisdiction thereof."
How does the rest of the world treat birthright citizenship?
Only about 30 countries have it.
Almost all of them are in the Western Hemisphere.
Which make sense,
considering that a few hundred years ago,
these are the countries that were being populated by European colonists.
And now let's conveniently gloss over that part of history.
But the general trend over the last few decades
has been for countries to get rid of birthright citizenship.
Australia, Ireland, India, New Zealand, the United Kingdom, Malta, and the Dominican Republic
have all changed their laws, often for the reasons mentioned above.
The main arguments people have made
for getting rid of birthright citizenship for illegal immigrants
are that it encourages more people to immigrate illegally;
and it also uses up taxpayer resources
to help families that broke the country's laws from the very beginning.
On the other hand,
while getting rid of birthright citizenship
will discourage some people
from coming to the US just to have kids,
it can also lead to other problems.
For example, it could lead to a permanent underclass in society
the people who are descended from illegal immigrants,
who don't have any opportunities to join mainstream society.
This has historically been a problem in other countries,
where "these noncitizen youths
are more prone to crime
and extreme political ideologies like communism."
That's one reason the libertarian Cato Institute
actually supports birthright citizenship.
That and its ability to help assimilate
immigrants into American society.
Some people consider it "unfair"
to punish children for the crimes of their parents
while others consider it "unfair"
to give illegal immigrants the same automatic rights
and benefits as legal residents.
Besides, getting rid of birthright citizenship
probably won't make very many
of the 11 million illegal immigrants currently in the US
return to their home countries.
As with so many issues in this country,
liberals and conservatives aren't necessarily arguing
about the same thing.
From Obama to Trump,
leaders on both sides have said
we need to stop illegal immigration.
But will ending birthright citizenship do that?
And are the additional problems it might create worth it?
What do you think?
Leave your comments below.
And remember, this show requires a lot of research to produce.
So please, contribute to America Uncovered
on the crowd funding website Patreon.
Go to pateron.com/americauncovered to learn more.
Once again I'm your host Chris Chappell.
Thanks for watching America Uncovered.
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