Trump Targets Birthright Citizenship, Tripping Immigration’s Third Rail

Anyone who has ridden a subway is familiar with the third rail. Two rails of the subway track carry the wheels of the subway cars, but the third rail, away from the passenger platform, carries high-voltage electricity that powers the train. Touching the third rail can result in instant death.

In the American political context, Social Security, the popular retirement program that supports millions of retirees who are often the most significant voting bloc in every election, has always been described as the third rail. Any politician who touches Social Security—by proposing substantial changes such as cutting benefits, raising the retirement age, or privatizing it—is likely to have a shortened career.

Social Security is considered untouchable, a point President-elect Trump reiterated during his Sunday interview with NBC News' Kirsten Welker.

Trump: I said to people we're not touching Social Security, other than we make it more efficient. But the people are going to get what they're getting.

Welker: Okay. Entitlements off the table?

Trump: And we're not raising ages or any of that stuff.

Welker: Okay. Off the table?

Trump: I won't do it.

However, in a little-noticed portion of the interview, Welker and Trump also discussed birthright citizenship, which is long considered the third rail of any immigration debate.

Welker: You promised to end birthright citizenship on Day One.

Trump: Correct.

Welker: Is that still your plan?

Trump: Yeah. Absolutely.

Welker: The 14th Amendment, though, says that, quote, "All persons born in the United States are citizens."

Trump: Yeah.

Welker: Can you get around the 14th Amendment with an executive action?

Trump: Well, we're going to have to get it changed. We may have to go back to the people. But we have to end it. We're the only country that has it, you know.

The main issue is that Welker's question was inherently dishonest. She also forgot to mention the historical context for why such an amendment was even passed.

History. The 14th Amendment was ratified primarily to grant citizenship to formerly enslaved people after the Civil War. It overturned the Dred Scott v. Sandford (1857) decision, which denied citizenship to African Americans and has been considered one of the most faulty judgments to ever come out of the Supreme Court.

Dred Scott was an enslaved African American man who sued for his freedom. He argued that he had been taken by his enslaver, John Emerson, into free territories (Illinois and Wisconsin) where slavery was prohibited, and therefore he should be free.

In a 7–2 ruling authored by Chief Justice Roger B. Taney, the Supreme Court held that Dred Scott was not a citizen. Whether enslaved or free, Blacks could not be U.S. citizens and, therefore, could not sue in federal Court. The decision effectively denied African Americans any legal standing as citizens.

The relevant clause in Section 1 of the 14th Amendment, adopted on July 9, 1868, states: "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."

Welker conveniently forgot to mention the most crucial qualifier of the text: " subject to the jurisdiction thereof."

In 1868, this qualifier clearly referred to all regions within the United States, regardless of whether a region prohibited slavery. If a square foot was under the sovereign control of the United States, a person who was born on it automatically became a United States citizen. The Confederate States were, after all, part of the Union following the Northern States' victory, and anyone who was born in them was automatically entitled to citizenship.

The candidacy of John McCain. One of the highest-profile examples of the 14th Amendment being applied to an American was the case of former Arizona Senator John McCain. He was born on August 29, 1936, in Coco Solo, a U.S. naval air station in the Panama Canal Zone. His parents were U.S. citizens—his father, John S. McCain Jr., was a U.S. Navy officer, and his mother, Roberta Wright McCain, was also an American citizen.

When McCain announced that he would run for the Republican nomination in 2000, the obvious question was if his candidacy would be legitimate. The requirements to serve as President of the United States are outlined in Article II, Section 1, Clause 5 of the U.S. Constitution. It specifies three qualifications: Natural-born citizen (someone who is a U.S. citizen at birth, as opposed to someone who acquired citizenship through naturalization), the person must be at least 35 years old, and someone who was a resident within the United States for at least 14 years.

McCain qualified on the latter two, but was he a natural-born citizen?

The 14th Amendment easily solved that vexing question. McCain was born to U.S. citizen parents stationed abroad serving the United States government. Besides, McCain was born in the Panama Canal Zone, which was under U.S. jurisdiction at the time. Above all, McCain was born on a United States Naval Base, which is always considered sovereign U.S. territory no matter where in the world it is.

Anchor Babies. The 14th Amendment has been generously applied to anyone who sets foot on American soil, even briefly, regardless of their citizenship. Consider an immigrant mother-to-be who enters the United States illegally, escapes Border Patrol scrutiny, or is admitted into the country awaiting an asylum hearing and delivers her child within the confines of the United States.

Should this child become a United States citizen? Proponents of birthright citizenship say yes. But opponents point to the qualifier "And subject to the jurisdiction thereof." The mother, being a migrant, is clearly not under American jurisdiction. Even under the definition by the most liberal voices, the mother is "undocumented" in the United States, and her jurisdiction belongs to the country from which she arrived. The child, dependent upon the mother, by extension, is also not under American jurisdiction. Being born here alone doesn't grant the child that jurisdiction.

The question is fraught with various complex scenarios. What happens to someone working in a specialty occupation in America on a non-immigrant visa? The person pays United States income taxes and pays into the Social Security Trust fund. Still, until the person becomes a naturalized citizen, she is legally not entitled to Social Security benefits. Is this person under American jurisdiction? Should her child born in America get birthright citizenship?

A strict interpretation of the 14th Amendment would be that the mother's jurisdiction is still the country whose passport she uses to travel to and from the United States. And so, her child should not qualify for United States citizenship. Such an interpretation, however, would throw millions of families into disarray, especially if retroactively applied. No court would do it.

Trump's executive order will immediately invite a challenge and force the courts to take it up, potentially going all the way to the Supreme Court.

Simultaneously, Trump could kickstart a Constitutional Amendment to address the issue. The last Amendment to the U.S. Constitution, the 27th Amendment, was adopted on May 7, 1992.

Trump has a winning mandate and nothing to lose in pursuing a crucial issue that has gone unresolved for over 150 years. Credit President-elect Trump for bringing such a contentious ‘third rail’ issue to the forefront.