Vivek Ramaswamy Proposes a (Probably) Illegal Plan To End Birthright Citizenship

It’s highly unlikely that it would pass constitutional muster.

During Wednesday night's Republican presidential debate, candidates re-upped their calls to close and militarize the U.S.-Mexico border, "defund sanctuary cities," and deport undocumented immigrants. They overwhelmingly pushed for harsh and ineffective policies—but one candidate pushed a plan that isn't just bad but very likely illegal.

"I favor ending birthright citizenship for the kids of illegal immigrants in this country," said Ramaswamy. "Nobody believes that the kid of a Mexican diplomat in this country enjoys birthright citizenship…neither does the kid of an illegal migrant who broke the law to come here."

Ramaswamy is wrong on the latter point. The 14th Amendment "gives birthright citizenship to children of undocumented immigrants and visa holders" if they're born on U.S. soil, wrote Ilya Somin, a law professor at George Mason University, in 2018. "Even if that were not the case, the power to grant citizenship is a congressional power, not an executive one."

Somin isn't alone: As he said, there is an "expert near-consensus on this subject," which "is backed by longstanding Supreme Court precedent, going back to United States v. Wong Kim Ark (1898)." The case affirmed that all people born on U.S. soil—with the exception, Somin wrote, of kids born to "foreign diplomats, soldiers of invading armies, and (at the time) certain members of Indian tribes"—were afforded citizenship by the 14th Amendment. What's more, the Constitution grants Congress, not the president, the authority to "establish an uniform Rule of Naturalization."

When former President Donald Trump proposed ending birthright citizenship "with an executive order" in 2018, Damon Root responded that Trump's plan "would be flatly unconstitutional." And going beyond procedure, "the U.S.-born children of both legal and illegal immigrants clearly qualify for birthright citizenship under the 14th Amendment."

Though Ramaswamy goes particularly far, saying that he'd deport the U.S.-born children of undocumented immigrants, other Republican presidential candidates share his general view on birthright citizenship. Florida Gov. Ron DeSantis has said that he wants to "end the idea that children of illegal aliens are entitled to birthright citizenship if they are born in the United States." Likewise, a spokesperson for former South Carolina Gov. Nikki Haley told the Daily Caller in June that she "opposes birthright citizenship for those who enter the country illegally."

The Republican candidates have reignited a debate over birthright citizenship that Trump brought into the spotlight during his first term. As with many aspects of the modern GOP's immigration debate, candidates are embracing formerly fringe Trump-era ideas in an attempt to look tough.

Ramaswamy didn't specify the exact mechanism he'd use to end birthright citizenship. But the president simply doesn't have the authority to redefine who the 14th Amendment applies to, and his reading of the Constitution flies in the face of a 125-year-old precedent.

Comments

[CE]

That ought to be popular to all the voters whose parents immigrated here....

[Social Justice is neither]

You mean Democrats? Why should we reward people for breaking the law?

[SRG2]

The Constitution is part of the law. Hence so too is birthright citizenship.

[VULGAR MADMAN]

But it’s not illegal to illegally cross the border is it sunshine?

[charliehall]

Doesn't matter. Crossing the border illegally is a misdemeanor and we don't deport people for committing misdemeanors, especially ones that are never prosecuted.

[Nardz]

Birthright citizenship is a progressive policy that's diametrically opposed to the meaning of the 14th amendment as explicitly stated by its authors on the senate floor but had been unconstitutionally imposed by the courts rather than legislative passage.

We are at war though, so who gives a fuck what our illegitimate government says.

Time to start holding people who advocate for our enemies accountable.

[Rossami]

re: " as explicitly stated by its authors on the senate floor"

Cite, please?
I'm not saying you're lying but I've never heard that claim before and would be very interested in reading the source evidence. On its face, the plain wording of the first sentence of the 14th amendment seems to be a clear grant of birth citizenship

[DesigNate]

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof"

If their parent's aren't citizens or naturalized, wouldn't they be subject to the jurisdiction of their homeland?

[charliehall]

Not subject to the jurisdiction means you can’t be sued in court and you can’t be prosecuted for crimes you commit. That language excludes diplomats and nobody else. Basically, the nativists here are arguing that illegal immigrants can’t be charged with any crime, not even first degree murder.

The drug cartels in Latin America would love that to be the law here!

Oh and you don't want to have other countries having sovereignty over people in the US. You just argued for that.

[markm23]

NO. If the US did not have jurisdiction over them while they were on US soil, they could not be prosecuted by the US for a crime committed on US soil. They would be like diplomats, who can only be deported.

I would support a new Amendment on birthright citizenship - that a child is born a citizen only if
1) One or both parents are citizens of the USA, but:
---If born out of the USA to a citizen, the child becomes a citizen only when brought to live in the USA for at least half of his/her childhood;
---If the child has dual citizenship, he/she will lose the US citizenship if as an adult he/she holds the foreign citizenship above the US citizenship.

2) Or he/she is born on US soil to a mother who is present in the USA as a legal resident or long term visitor, who is not under a foreign diplomatic passport, and not with an invading army, and only if the child lives in the US for at least half of his/her childhood.

3) All who are born citizens under this Amendment and only those who are born citizens under this Amendment are natural born citizens of the United States, as provided in section 1, Article 2 of the Constitution of the United States in the qualifications for President.

[markm23]

One question: How would you treat citizenship for a child from another country adopted by Americans? I ask because I knew a guy who always thought he was an American, born in Michigan, until he applied for a passport. That's when he found out he was adopted, and actually born in Windsor, Ontario, Canada. I think that someone like him, who was adopted into the USA as an infant and raised as an American with American parents, should be the same as a birthright-citizen, and at least as qualified to run for President as a guy born in Hawaii to an anti-American but American-citizen hippy mother, and raised mostly overseas. OTOH, it should take more than just an adoption to make a 17 year old with no previous connection to the USA a citizen.

So probably we should add another clause to the proposed Amendment allowing Congress to make the rules for the citizenship of foreign children adopted into the USA.

[SIV]

The 14A didn't create birthright citizenship.

[charliehall]

Nonsense. The 14th Amendment means what it says. If you are born here, you are a citizen. Period. The only exception are diplomats.

[Nardz]

https://twitter.com/Indian_Bronson/status/1707131547369746773?t=toX05WbfB5lbbTYLdCnS5Q&s=19

Without the mass deportation of tens of millions, including their children, covering over a decade of illegal entry since DACA, the US population and electorate is going to be defined by recent arrival illegal aliens in your lifetime.

This is on top of the mass demographic change the US has already experienced, also driven by mass immigration (often illegal), and will mean America's predominant culture as well as politics becomes unrecognizeable to those who came of age before ~2005.

In your lifetime!

[Links]

[CE]

Easy answer: have more kids than they do.

[Nazi-Chipping Warlock]

Easier answer: Enforce the law.

[Nardz]

You're a tumor

[Fetterman's Hump]

Easier answer, deport you too.

[charliehall]

You want to outdo Hitler in terms of roundups.

[Minadin]

I don't see any constitutional problem with Congress passing a law / rule / amendment that says that people only become 'birthright citizens' if their parents (at least one) are either citizen immigrants or legal permanent residents at the time of their birth.

The problem I see is Congress ever passing anything in the foreseeable future that isn't just a huge appropriations bill. What else have they done recently?

[charliehall]

If you actually bothered to read the 14th Amendment you would realize that there is a problem. What do you think "All persons born" means? Hint: It is in English.

[IceTrey]

No that's NOT what US v Wong says. The ruling was that the children of legally domiciled residents are citizens at birth. The state department or whoever has just been giving away citizenship with no authority. Birthright citizens also aren't natural born citizens. That includes Harris.

[rrgg]

+1 IceTrey is correct, and even if not the President can pursue Congress to make or amend law as needed. There's nothing to say V.R. wouldn't do so.

[charliehall]

Harris's parents were here legally and her father was eligible for a permanent resident visa with no waiting if he didn't actually have one.

[markm23]

What's that about Kamala Harris? Unless we eject California from the Union, she was born in the USA to two parents with green cards. It's not her ancestry that made her anti-American, nor even indoctrination in school - it's _which_ bunch of indoctrinators she _chose_ to listen to.

[Quicktown Brix]

Vivek's policy leaves open the question of where to deport a child born to illegal alien parents from different nations to? Perhaps the Solomon solution?

[JesseAz]

With the parents. How do you think custody battles happen currently?

[Quicktown Brix]

With a bandsaw?

[DesigNate]

That one made me chuckle.

[charliehall]

If the child is stateless the child has to be allowed to remain in the US.

Otherwise the child can be -- and is -- deported to whatever country grants him/her citienship. Infant birthright citizens get deported along with their parents. Today.

[Nazi-Chipping Warlock]

Let the kid keep citizenship. And tell them they can come back when they're an adult. Then ship 'em home with mom.

[Billy Bones]

Ending some forms of birthright citizenship may be unconstitutional, which is another reason we need to have a Constitutional Congress. In our justice system, one is not supposed to be allowed to profit from their illegal activity...ill-gotten gains (see also: Bernie Madoff). If an immigrant holding a green-card has a child on US soil, that child is American and I welcome with open arms. If an illegal immigrant spits out an child, both mother and child should be deported. At the very least, the child is allowed to return upon emancipation.

[charliehall]

"If an illegal immigrant spits out an child, both mother and child should be deported. At the very least, the child is allowed to return upon emancipation."

That actually IS what is done today. The only way the child stays is if the child is placed with relatives who are citizens or have legal status, or if the child is placed for adoption. The child can return at age 18 on his/her own and then can petition for his/her parents to get a legal visa. This also happens to children of legal visitors when the visas expire.

[JesseAz]

Fiona... it is a constitutional issue, not statutory. Please learn the basics of our government before opining.

Likewise the debate has been happening for 50 years.

[Fetterman's Hump]

Use the Swiss solution. First generation citizens can't vote. Wait till the third (i.e. fully American) generation before full citizenship kicks in.

This is one solution and maybe some of you disagree.

Vivek is correct about the underlying problem. Birth right citizenship is the root cause of a lot of problems, and was not the intent of the 14th.

[SIV]

Well, first there's the text of the 14A, then there is the intent expressed by the author of that provision, and IIRC, two contributing authors of the 14A are on the record as saying birthright citizenship pre-existed and was protected by the constitution.

[charliehall]

" birthright citizenship pre-existed"

See my other comment. But once it is in the Constitution, it can only be changed with an Amendment. Which isn't going to happen. Nor should it. Many problems in the world today are caused by the lack of birthright citizenship in Europe and the Middle East.

[charliehall]

Probably a violation of the 15th Amendment, to the extent that the people excluded aren't White (and most of them wouldn't be classified as White).

Rhode Island actually had two revolutions over its restriction of the franchise in the kind of ways you propose.

[TKK]

Doesn't the President as Chief Executive and Commander in Chief have an ability to proclaim/declare an “invasion”?
Similarly, may the President declare the proclaim/declare that there ARE “enemies within and during a hostile occupation of part of our territory”?
Beyond the issues of inherent Constitutional authority and separation of powers, see Congressional authorization/recognition of Executive authority. 50 U.S.C. §21

On the latter question, note that an affirmative declaration would appear to apply one of the recognized exclusions from birthright citizenship, by unilateral Presidential action on a nonjusticiable political question.
Also, on the latter question, I believe Professor Somin may have misstated the exception for “enemies within and during a hostile occupation of part of our territory” as being applicable only to the similar but narrower class of “soldiers of invading armies”.

[Rossami]

re: "Doesn’t the President ... have an ability to proclaim/declare an “invasion”?

No, but Congress might.

re: "may the [government] declare the proclaim/declare that there ARE 'enemies within and during a hostile occupation of part of our territory'?"

Maybe but the argument that illegal immigrants meet the legal thresholds to be called a "hostile occupation" is pretty weak. It would require actual evidence, not mere rhetoric. It would also require the government to actually act as if this were a military invasion rather than something for police to handle.

[TKK]

re: “Doesn’t the President … have an ability to proclaim/declare an “invasion”?

No, but Congress might.

>>
I tend to think that the President as Commander in Chief has authority to declare an invasion, as matter of Constitutional authority. That position is based that on some understanding of the historical role of English Executives leading up to the drafting of Constitution, and indications in U.S. law, e.g. Prize Cases, 67 U.S. at 635 ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force . . . without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures); United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is "the duty . . . of the executive magistrate . . . to repel an invading foe") (12); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack") (13); see also Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J. concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000);id. at 40 (Tatel, J., concurring) ("[T]he President, as Commander in Chief, possesses emergency authority to use military force to defend the nation from attack without obtaining prior congressional approval."); Story, supra note 9, § 1485 ("[t]he command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers).

What draws you to the conclusion: "No, but Congress might."

Regardless, see 50 U.S.C. § 21, indicating that Congress HAS delegated such authority to the President!

[charliehall]

You aren't an enemy if you are from a country not at war with the United States and are applying for asylum. In fact, if you are applying for asylum, you aren't even here illegally.

[TKK]

I do not discount that specific cases of asylum seekers may be relevant.

But... Who gets to determine the status or occurrence of "enemies within and during a hostile occupation of part of our territory"? [quoting UNITED STATES v. WONG KIM ARK. 169 U.S. 649]
As per my prior comment with case law citations, I believe the Chief Executive and Commander in Chief is the politically accountable person vested with such authority, under the Constitution. I do not see that the determination requires a declared war from Congress, under the Constitution. Again, see the case law cited above.

However, even if the authority to declare the existence of "alien enemies" resided with Congress, 50 U.S.C. § 21, indicates that Congress HAS delegated to the President the authority to "proclaim" when "any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government".

And, when "the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies".

The authority to make such a proclamation is in contrast to a declared state of war, as set forth in 50 U.S.C. § 21.

[Fetterman's Hump]

Birth right citizenship should be eliminated. A child SHOULD be a citizen if he/she is born to a citizen (mother or father). If not, the child is not a citizen.

Eliminate the stupid magnet of BR citizenship.

[SIV]

You're gonna have to repeal more than just the 14A to get rid of it.

[charliehall]

Correct. Birthright citizenship actually stems from English Common Law and the very first Naturalization Act passed by Congress in 1790. Basically eliminating birthright citizenship is probably un-American because it goes all the way back to the earliest English settlements. What the 14th Amendment did wasn't to create birthright citizenship; it had been around here since 1607. What it does was to enshrine it in the Constitution so that it couldn't be repealed by the nativists who have taken over this site, and it extended it to all races.

[Johnathan Galt]

Pure rubbish. "Birthright citizenship" itself is unconstitutional and illegal. You don't get to be a citizen of any other country of the world simply because your parents smuggled you across the border.

[charliehall]

First of all, it can't be unconstitutional if it is in the plain language of the Constitution.

Second, your second statement is a lie. Almost every country in the Western Hemisphere grants birthright citizenship to anyone born there except for children of diplomats, period. Some even grant birthright citizenship to children of diplomats. Most include it in their Constitutions.

[Twiz123]

That may be the case but I support the Republicans doing exactly what the Democrats do. Pass laws that are probably unconstitutional and enforce them as long as possible until the court cases make it through the various court systems and ultimately to the SCOTUS. The Democrats do this constantly regarding guns knowing its unconstitutional but they do it anyway. The Republicans should follow this playbook as often as possible.

[John Rohan]

with the exception, Somin wrote, of kids born to "foreign diplomats, soldiers of invading armies, and (at the time) certain members of Indian tribes"—were afforded citizenship by the 14th Amendment.

I submit that illegal immigrants are invading armies, and many of them belong to indigenous tribes all across the Americas.

[markm23]

If they were an invading army, we'd send the Army after them, not the police. I can't see that happening - and if we re-elect Trump and he orders the Army to round up illegal immigrants, some federal judge would immediately overrule him under the posse comitatus act.

As for your second point, we no longer consider any indigenous tribe to be a sovereign nation, so that exception to birthright citizenship is extinct.

[Wally]

The case affirmed that all people born on U.S. soil—with the exception, Somin wrote, of kids born to "foreign diplomats, soldiers of invading armies, and (at the time) certain members of Indian tribes"

The people entering in violation of the law are no different than an invading army. Precedent holds that their children should not have citizen status. Why would those entering illegally get better protection under the law than a diplomat?