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Just yesterday, we wrote that we are inclined to ignore most of the blather coming from Donald Trump and Gov. Ron DeSantis (R-FL) these days, since it's mostly hot air. (Note that we originally mistyped that as "hot hair"—Freudian slip?). One of the exceptions to the rule is when one candidate or the other stakes out a significant policy position. And Trump certainly did so yesterday.
With the caveat that any Trump policy position could disappear into the ether at any time, the former president posted an announcement to his personal website yesterday in which he decrees: "As part of my plan to secure the border, on Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship."
We will deal with the civics part of this first. The key portion of the Constitution here is the first sentence of the first section of the Fourteenth Amendment, which 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.
The key question here is what is meant by "and subject to the jurisdiction thereof." The intent of the fellows who wrote and adopted the amendment was to avoid conveying citizenship on the children of diplomats (and, for many of the politicians of the 19th century, Native Americans). In those two cases, individuals were regarded as residents of a foreign nation (embassies and reservations, respectively), even while physically present in the United States.
What the anti-immigrant crowd is hanging its hopes on is that "and subject to the jurisdiction thereof" means something different, namely "subject to the laws of country [X]." That would mean that, for example, a person born in the U.S. to parents who hold Chinese citizenship would not receive citizenship, because that person would be subject to Chinese law through their parents.
There are a couple of sizable problems with this interpretation. The first is that it makes no sense. When the Fourteenth Amendment was written, it was already the case that people born in the U.S. to U.S.-citizen parents were automatically citizens. There was no need to put that in the Constitution a second time. The Amendment was clearly intended to apply to children born in the U.S. to non-citizens, most obviously to formerly enslaved people. The second problem is that, when xenophobic folks in the 19th century tried to make the exact argument now being made by Trump, the Supreme Court smacked them down, in United States v. Wong Kim Ark (1898).
In short, if the current interpretation of the Fourteenth Amendment is going to go the way of the dodo, there are only two ways for that to happen. The first is for a new amendment superseding the Fourteenth to be added to the Constitution. That's not happening, obviously. The second would be for the Supreme Court to hear a case on jus soli citizenship, and to issue a ruling that overturns United States v. Wong Kim Ark (and other, subsequent, cases). This is also very, very unlikely. Not only would the justices have to stand on their heads to justify such an interpretation, they would also create absolute chaos, throwing into question the citizenship of tens of millions of Americans, among them Kamala Harris.
In any event, there is no way that Donald Trump can make such a policy change via executive order. It would be no different from him issuing an executive order declaring that his administration's "interpretation" of the Nineteenth Amendment is that billionaires don't have to pay income taxes, or his administration's "interpretation" of the Twenty-Sixth Amendment is that people 18-21 can only vote if they are white and registered as Republicans. He could certainly try it, but the courts would snap his head back so fast he'd get whiplash.
And now, the politics. DeSantis has already secured passage of harsh anti-immigrant measures in Florida. He's got an actual record to run on when it comes to this issue, which happens to be Trump's signature issue. The Donald either failed to build his wall or, if you have consumed the correct flavor of Kool-Aid, already completed it. Either way, Trump cannot counter DeSantis in 2024 by talking about the wall. It would appear that "end birthright citizenship" is the planned replacement for "build the wall."
That said, a physical wall is a more powerful metaphor than... paperwork. It's also worth noting that, while it didn't get much attention, during his first presidential campaign, Trump also promised to end birthright citizenship on his first day in office. Needless to say, he never lifted a finger in that direction, undoubtedly because someone told him it wouldn't stand up to even cursory legal scrutiny. Presumably, DeSantis will either point this fact out, or else will also embrace overturning the Fourteenth Amendment. Either way, this does not figure to be as useful for Trump as the wall was in 2016.
And since we are on the subject of Trump utterances anyhow, we'll mention something that otherwise we would have ignored. Trump's former press secretary, Kayleigh McEnany, is now a regular on one of Fox's many shows. This week, she said that her former boss was leading DeSantis in polls, but that the gap was down to 25 points. Trump took great exception to this, and sent out this message on his boutique social media platform:
Kayleigh 'Milktoast' McEnany just gave out the wrong poll numbers on FoxNews. I am 34 points up on DeSanctimonious, not 25 up. While 25 is great, it's not 34. She knew the number was corrected upwards by the group that did the poll. The RINOS & Globalists can have her. FoxNews should only use REAL Stars!!!
This raises two questions: (1) Will people who are tempted to work with/for Trump ever learn that he eventually throws everyone under the bus, often at the smallest provocation?, and (2) Do you think he actually knows what "milquetoast" means? At very least, he doesn't know how to spell it. (Z)