PDT can end birthright citizenship with an executive order. It’s not just because the 14th Amendment was intended to overturn Chief Justice Roger Taney’s Dred Scot decision holding that slaves are not citizens and can never become U.S. Citizens.
It’s because the whole idea of birthright citizenship is not founded in Constitutional law. It is the work of the Federal bureaucracy and the lax enforcement of immigration law by the executive branch over several decades that has led to this absurdity. What the executive branch has done can be undone by the executive branch.
The 14th amendment was intended to do one big thing. That one big thing was to make it clear that the newly freed slaves after the Civil War were to enjoy full citizenship else their new freedom would be rendered meaningless. It was never intended to establish comprehensive immigration reform leading to the ridiculous notion that a pregnant woman can sneak into the country illegally, and if her baby is born while she is on U.S. soil then that baby is automatically a U.S. citizen.
The dreadful Dred Scot decision of 1857 held that Black people were not and never could be citizens of the Untied States. Abraham Lincoln was appalled by it. As a successful lawyer of the kind we wish we had more of today, Lincoln was dedicated to the rule of law almost as a sacred principle. That 7 of the 9 justices on the Supreme Court could have made such an unreasonable edict based upon false assumptions was hailed in the Slave-holding South and universally condemned in the North.
It became an important factor in Lincoln’s ascension to the presidency thus making it a leading cause of the Civil War. Stephen Douglas’ Kansas-Nebraska Act of 1854, rescinding the Missouri Compromise of 1820, had already set the country ablaze. The Dred Scot decision added highly flammable fuel to a fire that was already burning out of control.
After having fought a bloody civil war to end slavery the reconstruction Congress set about eliminating the remnants of slavey. The Dred Scot case was chief among the many indicia of slavery they meant to be rid of.
Among the many advances to human freedom found in the 14th Amendment is the absolute reversal of any precedent or legal authority of the Dred Scot decision. But it is absurd to argue that the drafters of the 14th Amendment said or intended to say that in future citizenship status will be automatically granted to anyone born to parents whose first act in the United States is to violate its immigration laws.
Birthright citizenship did not originate in the 14th Amendment. It came about by bureaucratic action, or perhaps inaction, and its dreadful effects on America can be undone by bureaucratic action.
The drafters of the 14th Amendment and the states which ratified it could not have imagined anything like birthright citizenship is included in that amendment. They would have vigorously denounced anyone who suggested it. Of course, until around the 1960s no one did suggest it. Birthright citizenship is one of the crazy ideas that arose out of that troubled decade. It’s time to put it to rest and restore sanity to U.S. immigration enforcement. Trump can do that with an executive order. I hope he does.