National Security

Trump ‘Wants to Get the Constitution Right’ by Tackling Birthright Citizenship

Experts say he's right to consider it, though congressional action may be more likely to succeed than an executive order

Image Credit: Pedro Pardo / Win McNamee / Getty Images

President Donald Trump “just wants to get the Constitution right” by weighing whether to end birthright citizenship for children born to non-U.S. citizens on American soil, professor John Eastman said Tuesday night on Fox News’ “The Ingraham Angle.”

“There’s actually two requirements for automatic citizenship: You’ve got to be born on U.S. soil, and you have to be subject to the jurisdiction,” Eastman told host Laura Ingraham. “And [Democrats] just read that last clause out of the Constitution as if it’s not there, or as if it means the same thing as being physically present here.”

“But for those that ratified, those that drafted that language, it meant subject to the complete jurisdiction — not subject to allegiance to any foreign power. That’s what mandates birthright citizenship,” he added. “And President Trump’s executive order just wants to get the Constitution right.”

Trump caused a meltdown among liberals — and even some conservatives — Tuesday when he told Axios that he is planning to issue an executive order that would deny automatic citizenship to the children of illegal immigrants, tourists and foreigners (without connections to this country) who happen to be born on U.S. soil.

The news of Trump’s latest rumination broke as the nation continues to debate how to prevent and deal with the Central American migrant caravan (pictured above right) heading north to the U.S. through Mexico.

Eastman, the Henry Salvatori professor of law and community service and former dean at Chapman University’s Fowler School of Law, also served as the founding director for the Claremont Institute’s Center for Constitutional Jurisprudence. He wrote a piece for The New York Times in December 2015 called “Birthright Citizenship Is Not Actually in the Constitution.”

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The professor argued that liberals merely have “misunderstood one of the clauses in the Constitution.”

“So the children of citizens, the children of lawful permanent residents — they’re automatically citizens if they’re born here. But the children of temporary visitors or people who overstay their visas, and certainly the children of people who are not even lawfully present in the United States at all, are not automatically citizens, according to the Constitution,” Eastman told Ingraham.

Former federal prosecutor Andrew McCarthy, now a Fox News contributor, agreed with Eastman’s constitutional reasoning while urging to Trump not to issue an executive order.

“I think they should have congressional action, Laura, as a practical matter. Personally, I think this is a constitutional provision of the 14th Amendment where we’re not only just dealing with the constitutional provision — it’s also been codified by Congress,” McCarthy said, adding that “There’s a very good argument that Trump shouldn’t do this by executive matter.”

“As a practical matter, I must tell you I think the way the Supreme Court lines up, the only way they have a chance of succeeding on what I and my friend John Eastman think is the correct policy is by getting it done by statute rather than executive order,” McCarthy insisted.

Although it has issued a statute that defines citizenship, Eastman noted that Congress used “the exact language as the Constitution.”

“So we’ve got to figure out what the Constitution means. And, like I said, there are two requirements: born here and subject to the jurisdiction,” Eastman said. “And what the president is trying to do is just enforce that law as written.”

Related: Trump Wants Birth Tourism Ended, but Even Conservatives Are Divided

Regardless of whether Trump issues an executive order or Congress passes its own law, reforming birthright citizenship will almost certainly face legal challenges, McCarthy warned.

“I think a lot of it depends on how it goes up to the Supreme Court, Laura,” McCarthy said. “If this goes up to the Supreme Court as an executive order, we lose. If it goes up to the Supreme Court as a statute, at least there’s a chance.”

Mark Krikorian, executive director for the Center for Immigration Studies (CIS), told Ingraham that clarifying birthright citizenship is also necessary for combating so-called birth tourism, in which non-U.S. citizens pay to come to the U.S. to give birth. Birth tourism is popular among Russians, Chinese, Koreans, Turks and Mexicans, he said.

“This is a big business, and it’s all legal. That’s the problem. These people are not breaking our laws. We are the ones who have this setup of rules that lets people have a kid here, they wait for a month or two for the passport to come in the mail, and then they leave,” he lamented.

“At least the children of illegal immigrants actually grow up here as Americans. They never grow up as Americans. They grow up in China, they grow up in Turkey,” Krikorian added.

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