Immigrant babies vs. "birth tourism" babies.

There may be a legal distinction. Also a political distinction.

Americans have been fighting the same battle for centuries. In the decades after the Civil War southern and pro-slavery people--primarily Democrats then--were pushing to maintain social inequality on racial lines. Lincoln's successor, southerner Andrew Johnson, vetoed the Civil Rights Act of 1866 passed by the Republican Congress, because it said that all persons born in the United States were citizens of the United States. Why that would mean that people with African blood could sign contracts, be witnesses in trials, sit on juries, and even possibly marry a white person, Johnson said in objection.

In the 1960s the parties switched sides.

Republicans, under Goldwater took over the George Wallace segregationist position, and then with the Nixon Southern Strategy, the GOP generally became the South-rooted white person's party. Democrats became the party of inclusion, the pro-Civil Right party. The switch took about a decade to complete. 

The push and pull at the basis of the dispute never ended. The post Civil War Republican Congress understood that pressure to have second class citizens remained a powerful political impulse, generating black codes, grandfather clauses, poll taxes, and vigilanteism.

The Constitution's 14th Amendment language creates a crack in the wall, which political pressure is now testing. The arguable issue is whether citizenship requires affinity as well as birth. The Guest Post below observes that the distinction between political and economic migrants, whose children would still be citizens at birth, and so-called "birth tourists."

Potentially excluded from citizenship would be babies whose mothers come here on a passport, as students or tourists, presumably maintaining their foreign status. They are--potentially, arguably--less subject to American jurisdiction. Supporters of wider immigration--like me--need to be aware that "birth tourism" is the politically weakest link in the public support for citizenship by birth location. It looks manipulative to many. News stories have shown group apartments filled with women fully pregnant, awaiting delivery, people who came here for the primary purpose of having a baby in America.

I see it as a minor matter, a quirk, a bit of gamesmanship that is harmless and maybe even good for America. Babies born under those circumstances may become anchors for highly productive new citizens.  

Not everyone will feel as I do. That is the problem politically.

A birth-tourism incident in Ireland was the basis for Ireland to change its rules away from birthright citizenship. Trump may choose to make a narrow Executive Order to exploit the politics, one that specifically targets birth tourism. It might have political traction. Just look at those cheaters, Trump could say. 

It would fit the Trump narrative, that foreigners are not weak and vulnerable. Instead they are dangerous and manipulative. The frame positions the US not as the strong nurturer but as the sucker for foreign cheaters. 

Trump profits from that frame. That's what helped get him elected.

Guest Post by Thad Guyer

“The Slippery Slope of Politically Charged Constitutional Questions”

I agree with Judge Arnold on two points.  One, the language of the 14th Amendment on citizenship is not clear, and requires even lawyers to do legal research before confidently commenting. And two, this is a political question as much as it is a legal question. Major news outlets have not been running articles saying Trump is a fool to think his Executive Order could affect citizenship rights. Instead they have been bringing in legal expertise to evaluate Trump’s positions. Of course, that is exactly what Peter Sage did because despite degrees from Harvard and Yale, the constitutional language seems opaque to him.  Why? Because of the phrase "subject to the jurisdiction” of the United States. 

There is no question among legal scholars that if you were born in the US but you are NOT subject to US jurisdiction, as that phrase was understood in the 1860's, then you are not a citizen. In the 1860s that phrase may have meant-- and this is the legal debate-- that the visiting foreigner owed his allegiance to the foreign country from which he was visiting. Thus, the children of foreign diplomats and their foreign staffs were not then-- and are not now—citizens even if they have never even been to  their parents' homelands. Another exception--Native Americans who were subject to treaties with Washington were not citizens under the 14th Amendment--until passage of the Indian Citizenship Act of 1924. Hence, and this is indisputable, the 14th Amendment itself definitely has exceptions to birthright citizenship. 

The legal and political question is whether there are more exceptions, particularly ones that might be articulated by a politically conservative judiciary and Supreme Court. In broad brush, legal scholars seem to agree that the children of "illegal immigrants" born in the US are citizens. But Trump's executive order is likely (if he issues one at all) to take very strategic aim at a subset of illegal aliens--those who entered the US on short-term tourist visas with return air tickets and valid foreign passports. The legal question will be whether these foreign passport tourist visa holders were "subject to the jurisdiction of the United States" given their purported allegiance upon entry at our airports was to their homelands.   Ironically, the US born children of impoverished illegal immigrants who crossed the border with no papers pleading for refuge and denouncing their homelands may be far safer under the 14th Amendment that the middle class tourist visa holders who swore they came for quick little vacation and would shortly return to the foreign land to which their allegiance was purportedly owed.

As strictly a legal construction, I agree with judge Arnold. But as a highly charged political question that might end up in a clearly politicized Supreme Court, Trump's executive order does pass my laugh test. If Trump's order narrowly requires the deportation of "visa overstays" AND their child born in the US during the authorized period of the tourist visa, for example, I see very serious legal debate ahead in the courts as to what exceptions are yet to be carved out of the 14th Amendment.

It seems like only yesterday that the entire legal establishment was telling us that Trump's Muslim ban "clearly" violated the constitution--until the Supreme Court on a 5 to 4 political vote DID uphold it in it’s thinly veiled reissued form. And Dred Scott was outrageous and decried at the time so loudly a civil war followed. And Japanese internment was found constitutional in our lifetimes, though it was unthinkable. 

Elections have consequences.