Birth tourism is not constitutional, end by executive order
Birth tourism, presently running rampart in the United States, is where foreigners intentionally coordinate their delivery dates with tourism ensuring that the birth happens while in this country. They remain the weeks necessary for the new birth certificate to be used to generate a passport for their newborn. Maternal centers, some sleazy others high end, created to accommodate the wait, run lucrative businesses (perhaps $50,000 per birth) encouraging “clients” from China, Russia, Turkey, Taiwan and Mexico primarily. Their “tour” ends with their child having citizenship and a passport with only a few weeks invested in this country. They return to their country with the child raised having dual citizenship.
Why is this attractive to them? Mart Krikorian, executive director of the Center for Immigration Studies, shared four reasons for its popularity. First, if things go bad in one’s country at least the child, with a passport, can get out. Second, when the child is an adult he can sponsor his folks for immigration. For them “It is a “kind of retirement program,”with benefits. Third, it is a way for the chid to get cheaper tuition in American colleges as“foreign students have to pay more than U.S. citizens.” Fourth, it is a way for the child to avoid the draft in his home country, he simply goes to America. All of this for a little tour in the U.S. while having a baby (“The Ingraham Angle,” October 30, 2018).
But this practice is specifically forbidden by the 14th Amendment of the Constitution which reads in part: “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.”
Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment, (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom), to prevent that very interpretation. He said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and [already] subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign minister accredited to the Government of the United States, but will include every other class of persons.” It was Howard who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted.
Notice also the exclusion of babies born of ambassadors while here. If diplomats of high honor are specifically exempted from birthright citizenship, mere tourists, without any specific distinction, certainly would not have it. They not only have jurisdiction or allegiance elsewhere but are specifically identified as ineligible, and thus cannot have birthright citizenship.
On birthright citizenship President Donald Trump is on solid constitutional ground as expressed by the Founders of the 14th Amendment. Because this is a Civil War amendment designed to keep previously rebelling southern states from prohibiting ex-slaves, or their children, from having citizenship and because of the inclusion of the phrase “subject to the jurisdiction thereof,” there exists no other interpretation without serious distortion of the amendment. Senate deliberations on the 14th amendment show no other interpretation. Birthright citizenship cannot be taken from those already citizens or their children.
Indians did not get citizenship until 1924 because they were not yet clearly, “subject to the jurisdiction” of the United States government. One “cannot owe allegiance to anybody else,” argued, Senator Lyman Trumbull, co-author of the 13th Amendment outlawing slavery. That would most certainly exclude those proudly carrying their native flags in the recent caravan invasion of our border.
So how should Trump proceed in getting America back to the Constitution as written? First he must immediately issue an executive order ending the practice of birth tourism based upon his oath of office to defend and preserve the Constitution and by the specific ambassadors exclusionary clause of the authors of the 14th Amendment itself. He can count on the enemies of the republic to sue to block the execution of the order. Such normally take many months to process. This allows immigration and the wall to remain lead issues in the election. America demands closure on this issue and it will reelect him.
A statute solution through Congress in favor of ending the perversion of the Constitution with respect to birthright citizenship for anyone illegally crossing the border is the much preferred solution. Should the courts rule against a Trump executive order on birth tourism he will know the timing is not yet right for the same on the bigger immigration issue. Should they follow the Constitution as intended, he will, with the birth tourism issue in his favor, immediately do the larger issue by executive order as well, more especially if the opposition party, which supports open borders, retains the House, or looks to retain the House in 2020. This also would result in a suit so if in late 2019 a Republican retake of the House is probable, without obstruction from his own party, it might be better to wait for a statute solution through Congress.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. To read more, visit www.LibertyUnderFire.org.