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Donald Trump policy paper calls for end to birthright citizenship
Danny Cevallos: Don't think the Constitution can't change
Editor’s Note: Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.
(CNN) —
Republican frontrunner Donald Trump recently said he would overturn a law that grants citizenship to people born in the U.S.
It’s a statement that has a lot of people wondering: Can he even do that?
We wish we had an easy answer for you, but as with many legal questions, the answer is more complicated than it first appears. Here is why:
Most people assume that automatic citizenship conferred upon those born in the United States has always been a constitutional, and therefore immutable, right. Some are now suggesting that’s not the case.
Photos: Republican politicians head to the border
Sen. Ted Cruz, left, with Texas Gov. Greg Abbott, addresses the ruling by a federal judge in Texas delaying President Obama's executive action on immigration on February 18. Months later, on June 6, the 2016 presidential hopeful would hold a fund-raiser along the U.S.-Mexico border in McAllen, Texas.
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Erich Schlegel/Getty Images
Photos: Republican politicians head to the border
Mexican politician Tomas Yarrington, from left, then-Texas Gov. Rick Perry and Nuevo Leon Gov. Fernando Canales Clariond join hands during the U.S. and Mexico Border Summit on August, 22, 2001, in Edinburg, Texas. Perry, who is currently running for the 2016 GOP presidential nomination, is headed to the Rio Grande Valley in June for a fund-raiser with area elected officials.
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Alicia Wagner Calzada/Getty Images
Photos: Republican politicians head to the border
Wisconsin Gov. Scott Walker, seen here at the 2015 National Rifle Association annual meeting in April 10, visited the Texas border region in March. When it comes to immigration, the likely 2016 presidential contender declined to say whether he would support a pathway to citizenship even after the border was secure.
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Justin Sullivan/Getty Images
Photos: Republican politicians head to the border
A border patrol agent inspects a tunnel near Nogales, Arizona. Tunnels like this are used to transport drugs under the U.S. border.
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Josh Denmark/cbp.gov
Photos: Republican politicians head to the border
Cars line up at the Customs and Border Protection inspection station at San Ysidro, California, one of the busiest land ports in the Western Hemisphere. The district is north of the U.S.-Mexico border and is often used by travelers between San Diego and Tijuana, Mexico.
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Photos: Republican politicians head to the border
The line of demarcation of the U.S.-Mexico border at San Ysidro, California, is the dividing point between domestic rules of the road (Inland Navigation Rules) and the international rules of the road (Convention on the International Regulations for Preventing Collision at Sea).
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Josh Denmark/cbp.gov
On one side, supporters of birthright citizenship argue it was established by the 14th Amendment to the Constitution, and settled by the Supreme Court in 1898, when it held that children born in the United States, even to parents not eligible to become citizens, were nonetheless citizens themselves under that amendment.
“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.”
But let’s deconstruct that clause: Anyone [Born Here], plus [“Subject to Jurisdiction Thereof”]. The “being born here” part is clear, but what about the additional requirement of being “subject to jurisdiction [of the U.S.]”?
That jurisdictional requirement of the citizenship clause is something you might just read over – maybe because you got the gist of it at the “born” part of the clause, and just stopped reading. But it’s there.
What exactly was the meaning of the jurisdiction clause in 1868 when the 14th Amendment was ratified?
Does it just mean that the baby has to be born in a place that is “subject to federal jurisdiction”? If so, isn’t that already covered … by the part about being born in the U.S.?
Photos: Donald Trump's rise
President-elect Donald Trump has been in the spotlight for years. From developing real estate and producing and starring in TV shows, he became a celebrity long before winning the White House.
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Photos: Donald Trump's rise
Trump at age 4. He was born in 1946 to Fred and Mary Trump in New York City. His father was a real estate developer.
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Donald J. Trump for President, Inc.
Photos: Donald Trump's rise
Trump, left, in a family photo. He was the second-youngest of five children.
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Donald J. Trump for President, Inc.
Photos: Donald Trump's rise
Trump, center, stands at attention during his senior year at the New York Military Academy in 1964.
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Photos: Donald Trump's rise
Trump, center, wears a baseball uniform at the New York Military Academy in 1964. After he graduated from the boarding school, he went to college. He started at Fordham University before transferring and later graduating from the Wharton School, the University of Pennsylvania's business school.
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Seth Poppel/Yearbook Library
Photos: Donald Trump's rise
Trump stands with Alfred Eisenpreis, New York's economic development administrator, in 1976 while they look at a sketch of a new 1,400-room renovation project of the Commodore Hotel. After graduating college in 1968, Trump worked with his father on developments in Queens and Brooklyn before purchasing or building multiple properties in New York and Atlantic City, New Jersey. Those properties included Trump Tower in New York and Trump Plaza and multiple casinos in Atlantic City.
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Photos: Donald Trump's rise
Trump attends an event to mark the start of construction of the New York Convention Center in 1979.
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Photos: Donald Trump's rise
Trump wears a hard hat at the Trump Tower construction site in New York in 1980.
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Photos: Donald Trump's rise
Trump was married to Ivana Zelnicek Trump from 1977 to 1990, when they divorced. They had three children together: Donald Jr., Ivanka and Eric.
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Photos: Donald Trump's rise
The Trump family, circa 1986.
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Photos: Donald Trump's rise
Trump uses his personal helicopter to get around New York in 1987.
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Photos: Donald Trump's rise
Trump stands in the atrium of the Trump Tower.
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Photos: Donald Trump's rise
Trump attends the opening of his new Atlantic City casino, the Taj Mahal, in 1989.
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Photos: Donald Trump's rise
Trump signs his second book, "Trump: Surviving at the Top," in 1990. Trump has published at least 16 other books, including "The Art of the Deal" and "The America We Deserve."
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Photos: Donald Trump's rise
Trump and singer Michael Jackson pose for a photo before traveling to visit Ryan White, a young child with AIDS, in 1990.
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Photos: Donald Trump's rise
Trump dips his second wife, Marla Maples, after the couple married in a private ceremony in New York in December 1993. The couple divorced in 1999 and had one daughter together, Tiffany.
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Photos: Donald Trump's rise
Trump putts a golf ball in his New York office in 1998.
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Photos: Donald Trump's rise
An advertisement for the television show "The Apprentice" hangs at Trump Tower in 2004. The show launched in January of that year. In January 2008, the show returned as "Celebrity Apprentice."
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Photos: Donald Trump's rise
A 12-inch talking Trump doll is on display at a toy store in New York in September 2004.
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Photos: Donald Trump's rise
Trump attends a news conference in 2005 that announced the establishment of Trump University. From 2005 until it closed in 2010, Trump University had about 10,000 people sign up for a program that promised success in real estate. Three separate lawsuits -- two class-action suits filed in California and one filed by New York's attorney general -- argued that the program was mired in fraud and deception. Trump's camp rejected the suits' claims as "baseless." And Trump has charged that the New York case against him is politically motivated.
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Bebeto Matthews/AP
Photos: Donald Trump's rise
Trump attends the U.S. Open tennis tournament with his third wife, Melania Knauss-Trump, and their son, Barron, in 2006. Trump and Knauss married in 2005.
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Photos: Donald Trump's rise
Trump wrestles with "Stone Cold" Steve Austin at WrestleMania in 2007. Trump has close ties with the WWE and its CEO, Vince McMahon.
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Photos: Donald Trump's rise
For "The Apprentice," Trump was honored with a star on the Hollywood Walk of Fame in January 2007.
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Photos: Donald Trump's rise
Trump appears on the set of "The Celebrity Apprentice" with two of his children -- Donald Jr. and Ivanka -- in 2009.
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Photos: Donald Trump's rise
Trump poses with Miss Universe contestants in 2011. Trump had been executive producer of the Miss Universe, Miss USA and Miss Teen USA pageants since 1996.
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Photos: Donald Trump's rise
In 2012, Trump announces his endorsement of Republican presidential candidate Mitt Romney.
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Photos: Donald Trump's rise
Trump speaks in Sarasota, Florida, after accepting the Statesman of the Year Award at the Sarasota GOP dinner in August 2012. It was shortly before the Republican National Convention in nearby Tampa.
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Photos: Donald Trump's rise
Trump appears on stage with singer Nick Jonas and television personality Giuliana Rancic during the 2013 Miss USA pageant.
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Photos: Donald Trump's rise
In June 2015, during a speech from Trump Tower, Trump announced that he was running for President. He said he would give up "The Apprentice" to run.
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Christopher Gregory/Getty Images
Photos: Donald Trump's rise
Trump -- flanked by U.S. Sens. Marco Rubio, left, and Ted Cruz -- speaks during a CNN debate in Miami on March 10. Trump dominated the GOP primaries and emerged as the presumptive nominee in May.
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Rhona Wise/AFP/Getty Images
Photos: Donald Trump's rise
The Trump family poses for a photo in New York in April.
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Nancy Borowick for CNN
Photos: Donald Trump's rise
Trump speaks during a campaign event in Evansville, Indiana, on April 28. After Trump won the Indiana primary, his last two competitors dropped out of the GOP race.
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Bloomberg/Getty Images
Photos: Donald Trump's rise
Trump delivers a speech at the Republican National Convention in July, accepting the party's nomination for President. "I have had a truly great life in business," he said. "But now, my sole and exclusive mission is to go to work for our country -- to go to work for you. It's time to deliver a victory for the American people."
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John Moore/Getty Images
Photos: Donald Trump's rise
Trump faces Democratic nominee Hillary Clinton in the first presidential debate, which took place in Hempstead, New York, in September.
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Pool/Getty Images
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Trump apologizes in a video, posted to his Twitter account in October, for vulgar and sexually aggressive remarks he made a decade ago regarding women. "I said it, I was wrong and I apologize," Trump said, referring to lewd comments he made during a previously unaired taping of "Access Hollywood." Multiple Republican leaders rescinded their endorsements of Trump after the footage was released.
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Donald Trump/Twitter
Photos: Donald Trump's rise
Trump walks on stage with his family after he was declared the election winner on November 9. "Ours was not a campaign, but rather, an incredible and great movement," he told his supporters in New York.
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Chip Somodevilla/Getty Images
Photos: Donald Trump's rise
Trump is joined by his family as he is sworn in as President on January 20.
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Mary Calvert for CNN
Does it instead mean the baby is subject to federal jurisdiction in the sense that the baby must abide by federal laws, like those prohibiting mail fraud or bank robbery? Saying out loud that babies must obey federal law seems just a bit unnecessary – or insane.
Many scholars point to that “jurisdiction” part of the citizenship clause, together with its history, and contemporary law as proof that citizenship is not a constitutional birthright, but something that the government can either giveth, or taketh away.
Legal analyst Ken Klukowski compares the language of the Civil Rights Act of 1866 with the 14th Amendment, which was written the same year. The former grants American citizenship – to all persons born in the United States, and not “subject to any foreign power.” Klukowski argues that this is proof that the intent of the 14th Amendment was to require that you not only be born here, but that your parents were citizens too.
Reading legislative intent from hundreds of years ago is always tricky, but there is some modern support for this position.
For example, current immigration rules provide that a child born to a foreign diplomat on U.S. soil is not a citizen, because the baby is not “subject to the jurisdiction” of the United States. Laws like that, you may well think, should be automatically “trumped” by a Constitution that unconditionally guarantees birthright citizenship.
As for the Supreme Court decisions recognizing birthright citizenship, high court decisions are the law of the land, until an act of Congress or a constitutional amendment overrules them. This is the process Trump would have to navigate if he wants to abolish the 14th amendment.
I was born in Japan. My parents are American: The Navy sent my father; my mother went with him – probably to try a new country where she could complain about food. Because I was born abroad to American parents, I acquired citizenship at birth not from the Constitution, but under section 301(c) of the Immigration and Nationality Act. That means for people like me, and even Ted Cruz, our citizenship only emanates from a federal statute, which can be repealed.
It turns out that reasonable minds disagree on birthright citizenship – a principle that most of us never thought about until this presidential campaign. The issue doesn’t just touch children of immigrants – it reaches all citizens whose citizenship is a product of federal law and not the constitution.
So could a President Trump abolish birthright citizenship? That depends on what the 14th Amendment actually means, and whether a president could rally a Congress around the idea.
But a president and Congress can certainly try, based either on the limited view of the current Constitution, or even by amendment: Even amendments are, well, able to be amended. (Remember when alcohol was legal, then it wasn’t legal, then it was legal again?)
Don’t think the Constitution can’t change; it has flip-flopped before. Perhaps birthright citizenship is constitutionally guaranteed – until it isn’t.
