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Trump’s birthright citizenship plan hit by local legal scholars

US citizenship seen as protected

Soukayna Chouman was born in Boston. (Katherine Photo by Katherine Taylor for The Boston Globe

Soukayna Chouman’s mother left Lebanon on a visa in 1998, hoping that doctors here could save her life. She had been diagnosed with rheumatic fever and, despite several surgeries, was getting worse. A year later, while her mother was undergoing intensive treatment for heart disease, Chouman was born in Boston, a US citizen by dint of her birthplace.

Now, a week before crucial midterm elections, President Trump says he wants to end birthright citizenship for people like Chouman, who is now a 19-year-old nursing student at Simmons College. Imagining what her life would be like had US citizenship not been her birthright horrifies Chouman, who said her immigrant family, like so many others, came here for a better life.


“These people aren’t coming here to take America’s money, they’re here to make themselves better, and help the country,” she said. “I want to become a nurse here and help people here . . . My whole life is here.”

Legal scholars dismissed Trump’s proposal to end birthright citizenship through executive order as a legally implausible political ploy designed to gin up support among his anti-immigrant base. Just a day ago, Trump announced he would send more than 5,000 troops to the southern border to stop a caravan of Central American migrants he has characterized as an “invasion.”

“I think, obviously, it is a cynical trick to solidify his base prior to the midterm because it’s obviously unconstitutional,” said Susan Church, a Cambridge immigration attorney who last year sued Trump over his executive order banning travelers from seven predominantly Muslim countries. “It’s in the constitution, in black and white, and not subject to interpretation, no matter how the conservatives wish it were so.”

Church and others said the 14th Amendment to the Constitution unequivocally guarantees citizenship to most people born on US soil, regardless of their parents’ legal status. Changing that amendment would require a two-thirds vote in Congress, followed by ratification in three-fourths of the states, or a constitutional convention called for by two-thirds of the state legislatures.


“Even Trump and his lawyers surely realize that this off-the-wall threat has no legal legs to stand on and wouldn’t get the votes even of the most stalwart judicial conservatives,” said Laurence H. Tribe, a constitutional law professor at Harvard.

Trump, in an interview with Axios that was partially released Tuesday, said he initially believed only a constitutional amendment could end birthright citizenship. But White House lawyers told him it could be done through executive order.

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” Trump said. “It’s ridiculous. It’s ridiculous. And it has to end.”

In fact, 30 countries, including Canada, grant automatic citizenship to children born to undocumented immigrants, according to the Center for Immigration Studies, which favors lower levels of legal immigration and tougher measures to combat illegal immigration.

The 14th Amendment was ratified in 1868, overturning the Supreme Court’s infamous Dred Scott decision, which held that African-Americans, slaves or free, could not become US citizens. The amendment states that: “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.”


Some conservatives have argued that the amendment was never intended to apply to undocumented immigrants, and that granting them automatic citizenship encourages migrants to come to the country illegally.

John C. Eastman, a former dean of the law school at Chapman University in California, said the senator who drafted the phrase “subject to the jurisdiction thereof” intended it to exclude “temporary sojourners” or those who were “just visitors here.”

By issuing an executive order making clear that the amendment doesn’t apply to undocumented immigrants and temporary legal residents, Trump would merely be clarifying the original meaning of the amendment, he said. “He’s not changing the Constitution,” Eastman said. “He’s enforcing it as properly understood. And quite frankly, I think the president has a duty to do this.”

Many disagree, saying the notion that citizenship must be granted to those “subject to [US] jurisdiction” was intended only to exclude the children of foreign diplomats and enemy combatants.

James C. Ho, a Trump appointee to the Fifth Circuit Court of Appeals, wrote in 2006, before his elevation to the bench, that “the phrase thus covers the vast majority of persons within our borders who are required to obey US laws. And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey.”

Church said the notion that undocumented immigrants are not “subject to [US] jurisdiction,” if taken to its logical conclusion, would mean that undocumented immigrants could not be prosecuted for murder because they’re not under US jurisdiction.


Trump promised to end birthright citizenship as a candidate, and his plan was praised by at least one congressional Republican, Senator Lindsey Graham of South Carolina, who said he planned to introduce legislation along the same lines as the president’s executive order.

A spokesman for Governor Charlie Baker, a Republican, took issue with Trump’s comments, issuing a statement that read: “Governor Baker strongly disagrees with any plan to change birthright citizenship and he believes the Constitution firmly protects this right.”

Michael Levenson can be reached at mlevenson@globe.com. Follow him on Twitter @mlevenson.