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Congress, SCOTUS Can Change Birthrights Citizenship
Peggy Sands Orchowski -- Immigration Expert Peggy Sands Orchowski -- Immigration Expert
Washington , DC
Wednesday, October 31, 2018


Congress, SCOTUS Can Change BirthRights

By Peggy Sands Orchowski

President Trump is now threatening to do away with "birthrights citizenship". His announcement sounds ridiculous.

It 's a no brainer. Everyone one knows that anyone born in the U.S. is a citizen.  Right? It says so in the first sentence of the 14th amendment.  Right? And the constitution can only be changed by a constitutional process.  Right?

Actually, not right -- on all counts.

Almost every liberal pundit like Chris Matthews gets it wrong.  Matthews showed on his TV show awhile back that the 14th amendment clearly states: "All persons born or naturalized in the United States …  are citizens of the United States." But the dots that Matthew-- and just about every advocate for birthright citizenship who quotes the first sentence of the 14th amendment --  completely leave out, is a six word phrase that changes everything.

"and subject to the jurisdiction thereof".

And" means there are two requirements to become a natural birthrights citizen: 1) be born here, and 2) be subject to the jurisdiction.

"Jurisdiction" while it sound like convoluted legalistic jargon, is commonly assumed to mean "have to obey the laws".  Of course anyone here is supposed to obey the laws.  So if you're born here and have to obey the laws, you're a citizen. Right?  Duh!    

Actually not rght.  All is subject to interpretation. 

Two questions need to be asked and clearly answered: 1) What does "under the jurisdiction" really mean?  Some legal experts say it means "having a legal allegiance to the country" not just having to obey laws that any visitor or tourist must do (duh back!).  And 2) Who isn't subject to the jurisdiction and therefore can not be a natural born citizen?

IN 1868 when the 14th amendment was passed, there were actually four groups of people that were not considered to be under the jurisdiction of the United States, according to the Congressional Research office.    Their children could not be citizens even if born here. 

Two of those groups exist today: children of diplomats will full diplomatic immunity; and children of invaders.  These are universal laws that every country in the world recognizes. 

The jurisdiction of the two other groups were changed -- one in 1920 by an act of Congress (American Indian Voting Act)) and the other in 1898 by the supreme court - The United States v. Wong Kim Ark- that recognized that the children of LEGAL Chinese immigrants who under the Chinese Exclusionary Act of 1886 were not allowed to be naturalized, but whose American-born children could be considered to be citizens under the 14th amendment.

The Wong Kim Ark  ruling is considered to be very narrow – pertaining to children of legal immigrants (ie with documented immigration permits).  There has never been a ruling for the children born to migrants living and working in the U.S. illegally (aka without authorization, legal documentation or any legal rights to be here).  Are their parents truly "subject to the jurisdiction" of our laws – especially when many advocates for illegal immigrants insist that they not be held to almost any U.S. laws including immigration, labor, misdemeanors  and even rape of a minor if that puts them in line for deportation.

But Congress can make these questions clear through legislation and so can the Supreme Court.  The point is that to change the interpretation of the phrase "Subject to the jurisdiction thereof" doe NOT REQUIRE A CONSTITUTIONAL AMENDENT.

For the past ten years I have been covering and writing about almost yearly efforts by Republicans to  introduce a 1 ½ pg bill prohibiting birthrights citizenship to children whose both parents are here illegally or are non-citizens here on just very short term permits like tourists or travelers.  The proposals have never made it to the floor of either the House or the Senate however. Both parties are split over the issue.

Trump as usual is pushing the question.  Congress is being shoved kicking and screaming into the debat.  that is grabbing the attention of many Americans within days of the midterm elections.  Its' a head jerker for many.  "Say what?"  I've heard people ask and tweet in surprise.  "In the 21st century we still give citizenship to anyone who just happens to be here? We're the only country in the world that does so?  Is that our "legacy of immigration? Really?"

With politicians on all sides saying our immigration system is broken and being abused, seems like birthrights citizenship is an issue whose time has come for a good look over.

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“We can’t know where we’re going if we don’t know where we’ve been”. Vice President of the Brookings Institution Darrell West wrote in recommending Peggy Sands Orchowski’s books   "The Law That Changed The Face of America: The Immigration and Naturalization Act of 1965" and  "Immigration and the American Dream: Battling the Political Hype and Hysteria" (Rowman & Littlefield, 2015 and 2008 respectively).  Peggy is a credentialed Senior Congressional journalist in Washington DC. She is available for interviews, article assignments and speaking engagements about immigration   porchowski@hotmail.com

Peggy Sands Orchowski
Senior Congressional Correspondent
Washington, DC
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