"It was always told to me that you needed a Constitutional amendment.  Guess what?  You don't.  Number one, you don't need that.  Number two, you can definitely do it with an act of Congress.  But now they're saying I can do it just with an executive order."  —President Donald Trump, explaining that it is constitutional for the president to clarify the meaning of the Fourteenth Amendment with an executive order, for enforcement purposes

The Anchor Baby Debate Resurfaces

Last year, President Trump explained in an interview with Axios that the ending of birthright citizenship can be accomplished "just with an executive order."  The issue is coming to the forefront once again, as White House senior adviser Stephen Miller has recently explained that "all legal options" are being weighed.

The Language of the Fourteenth Amendment

What all the hoopla is about is the simple wording that constitutes Amendment XIV, Section 1, Clause One of the Constitution?  "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."  This modest statement makes it plain that persons born in the United States, who are subject to the jurisdiction of another country, are not American citizens.  So babies born to foreign nationals who are subject to the jurisdiction of China, for example, are Chinese citizens, because they — like their parents — are subject to the jurisdiction of China.  Since ex-slaves were either born in the United States or immigrated into the country legally — albeit as the property of slavers at the time of their coming — all these people were, by law, considered subject to the jurisdiction of the United States.  Freed slaves were, therefore, recognized as natural-born or naturalized U.S. citizens, according to the text of the Fourteenth Amendment.  The authors of the amendment never intended to reward childbearing lawbreakers who entered the country illegally by making their offspring citizens of the United States.

Back to the Future: What Was Explained in the Past with an Eye to the Future

Senator Jacob Howard, co-author of the Fourteenth Amendment with Senator Lyman Trumbull, has explained the meaning of the modifying clause "subject to the jurisdiction of the United States," per the Congressional Globe of May 30, 1866.  It is clear from his comments that the actual reason for adding this phrase was not to allow illegal aliens to claim birthright citizenship, but to clarify that ex-slaves were citizens of the United States from birth, since their parents were subject to the jurisdiction of the United States and not subject to the jurisdiction of any other country.  Constitutional language must express universal principles that apply in all cases, which is why the amendment does not mention slaves per se.

While discussing the meaning of the proposed amendment before Congress, Senator Howard proclaimed, "This amendment ... is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.  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 ... but will include every other class of persons."

Senator Edgar Cowan Poses Instructive Questions about Chinese Workers

Senator Edgar Cowan of Pennsylvania poses the following rhetorical question: "Is the child of the Chinese immigrant in California a citizen?"  And later in his comments, Cowan queries further: "[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration ... ?  Are they to be immigrated out of house and home by the Chinese?"

Senator Lyman Trumbull Weighs In

Senator Lyman Trumbull adds the following remarks to the discussion: "The provision is that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.'  That means 'subject to the complete jurisdiction thereof.'  [Referencing remarks by Senator James Doolittle of Wisconsin, Trumbull continues:] Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? ... Can you sue a Navajoe Indian in court?"  (In the postbellum era, a Navajo was considered to a citizen of an independent Indian tribe, although today an American Indian is allowed U.S. citizenship, "provided being a citizen of the US does not impair the person's status as a citizen of the tribe.")

Congress Can Legislate How the Fourteenth Amendment Is to Be Enforced

Section 5 of the Fourteenth Amendment reads as follows: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  This simple sentence means that Congress, exercising its power under Article I, Section 8, Clause Four of the Constitution may "establish an uniform Rule of Naturalization" with no need for further amendment of the Constitution.  Since Congress has never legislatively established a rule allowing illegal-alien scofflaws to give birth to legal-citizen babies, the longstanding situation may be legitimately interpreted as one wherein the people have not seen fit to alter the original meaning.  Currently, Title 8, Section 1401 of the U.S. Code spells out who may be considered a citizen, but it does not prohibit executive clarification.

Executive Order: A Clarification of Original Intent, Not a New Law

The president of the United States may clarify policy with regard to how a law is to be enforced.  For example, President Trump could write an executive order stating that holders of resident alien cards (green cards), since they are uniquely subject to the jurisdiction of the United States, have the option to file for U.S. citizenship for their American-born children.  The president could also choose to clarify that the same rule would not apply to visa-holders who possess only work permits, nor would it apply to illegal aliens of any kind.  In the absence of an act of Congress stipulating otherwise, the president's executive order would hold sway as the official enforcement mechanism.  So, in the end, Trump is correct: for the purposes of law enforcement, he can decide matters "just with an executive order."

Paul Dowling has written about the Constitution, as well as articles for American Thinker, Godfather Politics, and Eagle Rising.  His blog is Conservative Notions.

Image: Gage Skidmore via Flickr.