One of the first things President Trump did at the start of his second term was to sign an executive order ending birthright citizenship — the notion that a woman could cross the border into the United States and deliver a child for one purpose: To grant the child U.S. citizenship.
Birthright citizenship is based on the Citizenship Clause of the 14th Amendment to the Constitution. It 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."
On the surface that would appear to end all debate. Birthright citizenship is the law of the land and therefor so called "anchor babies" are legitimate American citizens — until you consider the purpose of the amendment.
It was among the three post-Civil War amendments known as the Reconstruction Amendments. The 13th Amendment abolished slavery, the 14th granted citizenship and guaranteed equal protection under the law, and the 15th prohibited states from denying the right to vote based on race.
Getting to specifics, the Citizenship Clause was included to reverse a portion of the Dred Scott decision. It held that African Americans were not and could not become United States citizens or enjoy any of the privileges and immunities of citizenship.
So the Citizenship Clause was included in the Reconstruction Amendments to clearly make former slaves, and children of those former slavers, American citizens.
It was meant to correct a past wrong, and never intended to create "anchor babies."
Shortly after Trump signed his executive order ending birthright citizenship, U.S. District Courts in the states of Washington, Maryland, and Massachusetts ruled that Trump's order was unconstitutional and unenforceable nationwide.
The president appealed those rulings to the U.S. Supreme Court, which delivered a partial decision in June. It prohibited, by a 6-3 vote, the concept of local federal courts entering universal or nationwide injunctions.
Whether the court will even consider the primary issue — the validity of the president's executive order ending birthright citizenship — is still pending, but it received a huge boost late last month.
On October 24 the attorneys general of Iowa and Tennessee led 22 other states in a petition asking the court to consider the birthright citizenship issue.
Those 24 states make up the majority of Republican-led states.
The petitioners' brief stresses that it wasn't until later in the 20th century that the Citizenship Clause was misapplied and became a magnet for illegal border crossings.
"Recent years have seen an influx of illegal aliens — over 9 million — overwhelming our nation’s infrastructure and its capacity to assimilate," the brief states.
"Conferring United States citizenship requires a more meaningful connection than mere presence by happenstance or illegality.
"That connection, originalist evidence repeatedly instructs, was parental domicile."
The states of Washington, Maryland, and Massachusetts rely on an 1898 case, United States v. Wong Kim Ark, in which Chinese national parents had a baby in the United States and the child was granted American citizenship.
However, that can be easily distinguished from the "anchor baby" problem in that the Chinese parents were both in the United States legally.
They weren’t border jumpers and they hadn't overstayed their visas.
The 24 states' petition also addresses the actual purpose of the Citizenship Clause — to remedy the past horrors of slavery.
"The provisions also sought to redress the ‘systematic denial of civil rights to freed slaves’ by prohibiting race-based discrimination in the conferral of citizenship or provision of civil rights,” their brief states.
The Federalist’s White House correspondent Breccan Thies argues that if the court agrees to hear the main issue in the Trump administration's appeal, and rules in its favor, the administration might even be able to remove those who were wrongfully granted citizenship by virtue of their birth.
That would, of course, be ideal. But if not that, we could at least finally reverse the pull of one more magnet drawing foreign nationals to illegally cross our borders.
We could become America again, of, by and for true American citizens.
Michael Dorstewitz is a retired lawyer and is a frequent contributor to Newsmax. He's also a former U.S. Merchant Marine officer and a Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.
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