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Donald Trump says his plan to roll back birthright citizenship for children of illegal immigrants will pass constitutional muster because "many of the great scholars say that anchor babies are not covered."
"Many of the great scholars" -- really? That comment caught our attention.
In case you need a refresher on birthright citizenship: As it stands now, any person born on U.S. soil is a citizen -- regardless of the parents’ immigration status -- because of the citizenship clause of the 14th Amendment. Trump has recently advocated for pulling back citizenship for illegal immigrants’ children. Some, like Trump, refer to these children as "anchor babies."
"The parents have to come in legally," Trump said, talking to reporters in New Hampshire Aug. 19. "Now we’re going to have to find out what’s going to happen from a court standpoint. But many people, many of the great scholars say that anchor babies are not covered (by the 14th Amendment). We’re going to have to find out."
Considering that about 300,000 babies are born to illegal immigrants and become citizens every year, we wondered if Trump is right to say that "many" scholars think this isn’t necessarily a constitutional right.
We won’t dig into who’s a "great" scholar, but we will look at how widespread this position is and if "many" say the 14th Amendment isn’t an impediment to Trump’s plan.
The 14th Amendment became part of the Constitution in 1868 following the Civil War. The amendment established birthright citizenship and equal protection under the law for all citizens, making newly freed slaves full American citizens.
The relevant clause reads: "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."
Today, this clause is widely understood to mean that the Constitution requires that everyone born on U.S. soil -- regardless of parents’ citizenship -- is automatically an American citizen. We polled a number of experts in immigration law, and each one told us that this is the mainstream view among legal scholars, without question.
The matter is not considered 100 percent settled, though. For one, the clause doesn’t directly address illegal immigration. Also, the Supreme Court has never made a specific ruling about a person born to undocumented parents.
The most relevant Supreme Court ruling was in an 1898 case, United States vs. Wong Kim Ark. The court decided that a man, Wong Kim Ark, was an American citizen because he was born in America, even though his parents were Chinese immigrants. Because his parents were legal residents, the case does not directly apply to children of undocumented parents.
To Trump’s point, there are some scholars who argue the 14th Amendment allows birthright citizenship for illegal immigrants but does not require it. This is a subtle but important point, because if the Constitution does not require birthright citizenship, Congress might be able to change the law without having to pass a Constitutional amendment, an arduous process.
In any case, this viewpoint is held by only a handful of legal scholars, not "many."
"I believe that Trump’s statement is incorrect," said Yale Law School professor Peter Schuck, one of the leading scholars who has endorsed this position. "I would say that our view on the constitutional issue is decidedly the minority view."
The gist of the argument rests on the fact that the 14th Amendment requires people to be born on U.S. soil and be "subject to the jurisdiction thereof" to receive citizenship at birth, as the amendment says. To understand this point a little better, consider the example of children of foreign diplomats born in the United States. These children are not citizens because their parents have allegiance to a foreign country and not the United States -- meaning they are not subject to U.S. jurisdiction.
Some people interpret the inclusion of "jurisdiction" as requiring mutual consent for citizenship: The person and the United States have to agree that this person is eligible for citizenship. If the parent is here illegally, does the United States agree that the child should be eligible for citizenship? Congress could, according to this point of view, decide that the answer to this question is "no," rendering the 14th Amendment inapplicable to these children, without violating the Constitution.
We won’t dig into this question further -- there’s a lot of history and judicial precedent to digest on both sides of the argument. (If you want to read more, we recommend this 2010 Congressional Research Report.)
The small group of scholars who endorse this idea -- that Congress can decide whether birthright citizenship extends to children of undocumented immigrants -- is not strictly partisan. Schuck is a self-described moderate, and he published the primary book on this topic in the 1980s with University of Pennsylvania professor Rogers Smith, who is liberal. Many of the scholars who have come out in support of this view in the past few weeks have conservative backgrounds, such as Edward Erler and John Eastman, both of the conservative Claremont Institute think tank. But not all conservatives share this point of view, either.
Also, at least one federal judge has said publicly that interpreting the 14th Amendment in this way wouldn’t require changing the Constitution: Hon. Richard Posner of the 7th Circuit, appointed by President Ronald Reagan.
Still, these legal thinkers "are in a very small minority," said Evelyn Cruz, director of the Immigration Law and Policy Clinic at Arizona State University’s law school. "Most scholars believe that the Constitution would need to be amended to achieve a reading opposite to Wong Kim Ark."
Trump said, "Many of the great scholars say that anchor babies are not covered" by the 14th Amendment.
There are respected academics who argue that the 14th Amendment allows but does not require children of illegal immigrants to receive citizenship just by virtue of having been born on American soil. However, this is a minority of immigration and constitutional law scholars, far outweighed by those who believe the 14th Amendment requires birthright citizenship for children of illegal immigrants.
Trump goes too far when he says "many," so we rate his claim Half True.
NBC, "Politics Nation" transcript, Aug. 19, 2015
Congressional Research Service, "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents," Aug. 12, 2010
National Review, "Trump’s Critics Are Wrong about the 14th Amendment and Birthright Citizenship," Aug. 19, 2015
National Review, "We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship Read," Aug. 24, 2015
National Review, "On Citizenship, the ‘Birthers’ Are Right," Aug. 22, 2015
Center for Immigration Studies, "Birthright Citizenship in the United States: A Global Comparison," August 2010
New York Times, "Birthright of a Nation," Aug. 13, 2010
Los Angeles Times, "The complicated rules of citizenship," Nov. 21, 2014
Journal of Constitutional Law, "Birthright Citizenship and the 14th Amendment in 1868 and 2008," July 2009
The Atlantic, "Could Birthright Citizenship Be Undone?" Aug. 19, 2015
The Becker-Posner Blog, "The Controversy over Birthright Citizenship," Oct. 17, 2010
NPR, "3 Things You Should Know About Birthright Citizenship," Aug. 18, 2015
National Constitution Center, "Birthright citizenship looming as a campaign, and constitutional issue," Aug. 14, 2015
The Social Contract, "Citizenship Without Consent," Fall 1996
Email interview, Judy London, directing attorney at Public Counsel's Immigrants' Rights Project, Aug. 24, 2015
Email interview, Harvard law professor Gerald Neuman, Aug. 24, 2015
Email interview, Ben Winograd, Immigrant & Refugee Appellate Center staff attorney, Aug. 24, 2015
Email interview, Evelyn Cruz, director of the Immigration Law and Policy Clinic at ASU, Aug. 24, 2015
Email interview, Niels Frenzen, director of the Immigration Clinic at the University of Southern California, Aug. 24, 2015
Email interview, Yale professor Peter Schuck, Aug. 24, 2015
Email interview, UPenn professor Rogers Smith, Aug. 24, 2015
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