Border hawks back Trump birthright citizenship fight despite legal hurdles

As President-elect Donald Trump plans to bolster border security and reform the American immigration system, Republican lawmakers appear supportive of his possible challenge to birthright citizenship, but have their doubts about its prospects.

“What happens is these folks come across our border, then they have a child here, and then they are, in turn, the baby sponsors them,” said Rep. Tim Burchett, R-Tenn., on Monday’s edition of “Just the News, No Noise.” “It's just, it's a racket… The system we had in place is not great.”

At present, under current interpretation of the 14th Amendment, anyone born within the borders of the United States is entitled to U.S. citizenship and that interpretation of the law has given rise to a number of questionable practices, including the travel of pregnant women to the U.S. and territories – called "birth tourism" – to give birth and bestow such rights upon their children. Illegal immigrants, moreover, often have “anchor babies” born in the country and use their status to fight deportation efforts. The Trump team has eyed a reinterpretation of the law to eliminate such practices and ease the implementation of mass deportations.

“We’re going to have to get it changed. We’ll maybe have to go back to the people,” Trump said in a recent interview. “But we have to end it.”

Trump’s legal team ostensibly believes that the president has the authority to direct federal agencies to interpret a provision of the 14th Amendment as excluding children born to non-permanent residents, The Hill reported.

“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,” reads the first line of the Amendment. The “subject to the jurisdiction thereof” line provides the basis for the Trump’s team’s preferred interpretation in that foreign tourists or illegal aliens may arguably not be subject to Washington’s jurisdiction and therefore not covered by the text of the Amendment. Ultimately, such an argument is almost certain to reach the Supreme Court.

“The president and the Congress have the authority to interpret the Constitution just as the Supreme Court does. It’s just that the Supreme Court is the one that gets the last word,” Center for Immigration Studies Executive Director Mark Krikorian told The Hill.

The Supreme Court currently has a 6-3 conservative majority, with three of the justices being Trump appointees. Those same justices, however, have ruled against him on other matters in the past and there is no guarantee that the nation’s top judicial body will approve a major reinterpretation of the 14th Amendment. Potentially complicating the Trump administration’s argument is a recent ruling reining in the ability of executive branch agencies to interpret the law without congressional support.

A "back door"

Earlier this year, the court eliminated “Chevron deference,” a legal doctrine permitting executive branch agencies to interpret the law where Congress has granted them a degree of rulemaking authority and not provided specific guidance. Some law enforcement officials have suggested Congress provide exactly that as a means of addressing the issue.

“I think it's something that needs to be evaluated by Congress and defined,” Pinal County, Ariz., Sheriff Mark Lamb told “Just the News, No Noise” earlier this month. “I don't think its intention is what it's being used right for right now. This has certainly been a back door for people who came into this country illegally and who are trying to stay here illegally, and I don't think that's what the Founding Fathers intended.”

“So I do think that Congress, Senate and judges are going to have to really define this out,” he added. “I think that there needs to be a very stringent rule in place for being born here into this country. We can't afford it anymore.”

Though the attempt to reinterpret the 14th Amendment faces uncertain prospects, it appears popular with the general public, with polling data suggesting that support for maintaining the current system to be well shy of a majority opinion.

"Call for end to #BirthrightCitizenship is popular with voters. If a pregnant woman enters the United States illegally and gives birth in the United States, just 41% think her child [should] automatically be considered an American citizen," pollster Scott Rasmussen said of a Napolitan News Survey from earlier this month. "Additionally, if a woman enters the United States illegally and becomes pregnant within a year or so.... and the father of the child is also an illegal immigrant, just 38% think that child automatically be considered an American citizen.”

Ultimately, Republican lawmakers still hope for a system that permits migrant workers to cross the border for work purposes and to allow for legal immigration. Some contend that obstacle to reform, however, comes from Democrats in Washington who hope to use mass immigration for election purposes.

“We have got to be able to bring migrant workers, but we should be able to do it, pay them, and then they can go home,” he added. “And there was a system in place that allowed for that, and we let that be abused by this administration to the point of 15 or 16 million people, terrorists over our border that we know are here.”

“The arrogance of this town [Washington, D.C.] is the only reason they have,” he asserted. “They would have to admit they made a mistake, and also, the American public would realize that they're just trying to load up census numbers to keep districts that are in Democrat hands. There's no other reason.”