Trump did not back down Wednesday from his controversial proposal to upend the very concept of American citizenship.
Republican candidate Kris Kobach echoed President Donald Trump's assertion that Trump can deny US citizenship to babies born to parents living in the country illegally, intensifying a focus on immigration in the final days of a close Kansas governor's race.
Judge Andrew Napolitano said Wednesday on "Outnumbered" that Congress can not stop the child of an undocumented parent from becoming a legal American citizen. After I proposed that very bad bill, my wife Landra immediately sat me down and said, 'Harry, what are you doing, don't you know that my father is an immigrant?' She set me straight.
The Constitution's citizenship clause was part of the post-Civil War amendments that enshrined the rights of African-Americans.
Activists seeking to limit immigration, including Michael Anton, who wrote an article on the subject for the Washington Post in July, argue that illegal immigrants are not under the jurisdiction of the United States and therefore their children born on USA soil should not be US citizens.
Trump denied when asked by a reporter if he is merely stoking fears about undocumented migrants before a crucial election.
Trump and many top aides have long seen the immigration issue as the most effective rallying cry for his base of supporters.
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"If he can do DACA, we can do this by executive order", Trump said, using the acronym for the Obama-era Deferred Action for Childhood Arrivals program.
While lawyers disputed that such unilateral action by the president could eliminate a right guaranteed by the USA constitution, some agents reassured potential clients that the policy would at least remain unchanged for a couple of years.
Trump repeated his claim that he can eliminate birthright citizenship via executive order later Wednesday, although he said his preference would be for Congress to pass legislation ending that constitutional right. "We'll go up to anywhere between 10,000 and 15,000 military personnel on top of Border Patrol, ICE and everybody else at the border". It is not covered by the 14th Amendment because of the words 'subject to the jurisdiction thereof.
In morning tweets, Trump said he would end the 150-year-old practice "one way or the other", seeming to leave the door open to either congressional action or a constitutional amendment, which many legal scholars say would be necessary to achieve his aims. Six of the Justices ruled that the phrase "and subject to the jurisdiction thereof" applied to any person required to obey USA laws, meaning even children of foreigners residing in the country permanently or temporarily. "This policy is a magnet for illegal immigration, out of the mainstream of the developed world, and needs to come to an end". The debate hinged on the question of what it means to be "subject to the jurisdiction thereof", which the court in Wong Kim Ark read to mean people required to obey USA law. He told The National that the debate about the 14th Amendment "explicitly considered this issue and opted for birthright citizenship...the Supreme Court has considered the issue and said that birthright citizenship is required Constitutionally". The White House did not respond to a request for comment.
The country is facing a massive backlog of immigration cases - some 700,000 - and there are more and more families coming across the border from Central America - groups who can not be simply returned over the border.
Legal experts say that is easier said than done.