CNN Spanish
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On the first day of his second term as president of the United States, Donald Trump signed a series of decrees that aim to transform the federal government. Several of them were related to immigration, one of the main issues during the electoral campaign that took him to the White House.
One of those executive orders, called Protecting the Meaning and Value of American Citizenship, aims to redefine birthright citizenship, the process that guarantees everyone born in the United States automatically obtains citizenship.
The measure, with the potential to affect many immigrants, has sparked controversy. It has even already been challenged by two dozen states and cities governed by Democrats — including Washington and San Francisco.
Citizenship by birth—also known by its Latin name, ius soli It is a right enshrined in the 14th Amendment to the United States Constitution that automatically grants citizenship to anyone born in the country, even if their parents are not citizens.
“All persons born or naturalized in the United States, and subject to their jurisdiction, are citizens of the United States and the state in which they reside,” indicates the constitutional text.
Citizenship by birth differs from ius sanguinis —or by right of blood—, which grants citizenship based on the citizenship of one or more parents.
In civil law systems, such as those of most European nations, the dominant principle is that of blood right. However, many countries also adopt a combination of jus soli and ius sanguinisguaranteeing citizenship to children born in the country and those born to parents who are citizens but live abroad.
About three dozen countries grant automatic citizenship to people born on their territory, including the United States’ neighbors Canada and Mexico, and most countries in South America.
“The 14th Amendment has never been interpreted as a universal extension of citizenship to all persons born in the United States,” states the text published and signed on Monday. He continues: “The 14th Amendment has always excluded from birthright citizenship people who were born in the United States, but (who) are not ‘subject to its jurisdiction.’”
In that phrase from the 14th Amendment of the US Constitution on which Trump has relied to sign the decree, he follows some hard-line supporters on immigration matters who have argued in the past that the children of undocumented immigrants are not “subject to the jurisdiction” of the US and therefore should not be considered citizens.
The decree, which says it will take effect for children born after 30 days of enactment, applies in circumstances where the parents are in the country illegally, or in situations where the mother is there temporarily, with a visa, for example, and the father is not a citizen.
Legal experts were skeptical before this week that such an argument would be accepted in court, arguing that the phrase was originally directed at the children of foreign diplomats who were subject to American laws and situations in which a foreign nation has invaded and is occupying part of the country.
The Republican’s other path involves a change in the Constitution, although a constitutional amendment has not been ratified in more than 30 years.
No president has the power to modify by decree a right enshrined in the Constitution.
For this, a constitutional reform is required, which is a process whose times and mechanisms are more complex, even in the situation of the elected president, with a majority in both chambers, analyst Óscar Chacón told CNN.
A constitutional amendment requires, according to its article V, to have the support of two-thirds of the House of Representatives and the Senate or to be proposed by a Constitutional Convention convened by two-thirds of each state legislature.
“Trump’s decree is completely unconstitutional,” says lawyer Jaime Estades. “If you look back at history, you see that when that amendment was written, those who wrote it were not thinking about what Trump is saying now about being ‘subject to jurisdiction.’ They would never have written that phrase to avoid giving citizenship; It was a time of great immigration and they chose that language to ensure the opposite: that the children of immigrants obtained citizenship,” he explains to CNN.
The experts consulted with CNN agree that Trump will not seek to modify the Constitution: it is a process that is too complex and for which victory is not assured.
According to Estades, Trump’s strategy is to create doubt about that phrase of the 14th Amendment and with that take the case to the Supreme Court. “He wants the Court to decide, and dispense with the votes of three-quarters of all the states. “It’s a much easier path,” he says.
Another problem, indicates lawyer and political analyst Rafael Peñalver, is that the Court has already ruled unequivocally on the issue in the Wong Kim Ark case, from 1898. “Wong Kim Ark was born in the United States and later traveled to China. , and when he returned they did not want to give him entry as a citizen. At that time the Court decided that the 14th Amendment gave him citizenship for simply having been born in the territory,” he comments. In addition, in that case, he adds, the law has been interpreted in this sense, without exceptions, for the last 150 years. “The Court should go against established precedent, which is difficult but not impossible,” he adds.
The executive director of the America’s Voice organization, Vanessa Cárdenas, affirms that the decree will open a wave of lawsuits that will end up sooner or later in the Supreme Court. “Although it is a long process, as we have seen in other immigration cases, for example DACA, I am convinced that Trump wants to implement his agenda as soon as possible,” she comments.
For this reason, Cárdenas adds, there will be immediate effects: “Trump uses the power of the decree so that agencies immediately stop providing documents, for example, or social security numbers, or asking for more requirements when someone wants to register their children. ”.
Cárdenas believes that, beyond the Court’s definition, Trump’s strategy consists of instilling fear. “People are not going to want to try it. Many people are going to self-deport. Even people with children who are citizens will be afraid to exercise their rights in schools or hospitals. Because the point is to discourage from now on both the arrival and the exercise of the rights of those who are already in the country,” he indicates.
