It should come as no surprise that President Trump has made it clear that he wants to change long-standing immigration laws up to and including amending the Constitution. He wants to put an end to birthright citizenship. His goal also includes upending immigration policy and blocking those who are victims of gang or domestic violence from seeking asylum. His positions are deeply troubling to minority communities, especially the Mexican-American community.
None of Trump’s pronouncements should shock. On the day he announced his candidacy for President, he was unequivocal about how he felt about certain immigrants, those from Mexico. “They’re bringing drugs. They’re bringing crime. They’re rapists,” he said. Though he did allow that not all fit these descriptions. “Some, I assume,” said the future president, “are good people.”
The 14th Amendment, adopted in 1868, established birthright citizenship. It states that “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.” Basically, if you are born in the country, you are a citizen.
Originally drafted after the Civil War, it was intended to grant citizenship to African-Americans in the South, persons whose previous status had been as slaves. While most have spent little time since thinking about it, the Amendment has never sat well with some, including right-wing organizations or those sympathetic to such causes.
Today, any discussion of the Amendment is aimed at, primarily, the U.S. born children of immigrants who came here illegally. The pejorative term, ‘anchor baby’ is often used by those staking a claim to its illegality. It is estimated that up to four million American citizens are children of undocumented parents.
In a recent interview, the President said he could, with the stroke of a pen, nullify the 150-year-old 14th Amendment. Prior to the mid-term elections, he told Axios, “They’re saying I can do it just with an executive order,” adding that “it’s ridiculous and it has to end.” He also said that the U.S. is the “only country in the world” that grants such a privilege. In fact, more than 30 countries grant birthright citizenship.
“You can’t just say, ‘You know what? I just think the interpretation is ‘X’ and start acting on it,” said Evelyn Cruz, Director of the Sandra Day O’Connor College of Law’s Immigration Law and Policy Clinic at Arizona State University. Since the late 19th century, the issue of eliminating birthright citizenship, said Cruz, has been debated. “It comes up regularly,” she said.
The first serious debate on the 14th Amendment occurred in 1898 and involved Wong Kim Ark, a Chinese-American cook born in San Francisco to immigrant parents. Returning from a trip to China he was denied entry because he was not considered American. At the time, there was huge anti-Chinese sentiment, particularly on the West Coast. A Chinese benevolent organization got him an attorney and in 1898, the Supreme Court ruled 6-2 that, indeed, Ark’s American birth secured his citizenship.
“It’s kind of a mindset,” said Professor Cruz. “Whenever we get migration waves, there’s a rekindling” of resentment. “The 14th Amendment goes to the heart of that.”
But the President is not alone in his quest to change a century and a half of settled law. Iowa Congressman Steve King has been an enthusiastic anti-immigrant voice, going so far as to introduce a bill to nullify the 14th Amendment. Likewise, Senator Lindsey Graham, a new, stalwart---and anti-immigrant---best friend of the President. “People come here to have babies,” he said. “They come here to drop a child. It’s called ‘drop and leave.’”
But suggesting a wholesale change to the Constitution is one thing. Actually, doing it requires heavy lifting. Both House and Senate must approve any change by a two-thirds vote. It would then require three fourths of the states---38---to ratify the change. This is the problematic challenge. The Equal Rights Amendment has been languishing for fifty years with only 37 states approving ratification. “Bad ideas don’t get through quickly,” said Cruz. The 18th Amendment, Prohibition, took 14 years for repeal.
The president’s disparagement of minorities, particularly Mexicans, did not stop when he announced his candidacy. He once said former Governor Jeb Bush was sympathetic to immigrants because of his “Mexican-born wife.” He was also critical of a Mexican-American judge, Gonzalo Curriel, who presided over a Trump University case. These examples are just two of many.
State Senator-elect Julie Gonzales believes the President’s words on birthright citizenship have given a green light to others and not only on it but on other issues where they might have earlier curbed their anger toward minorities. The recent tear-gassing of immigrants at a California border crossing is just the latest example. “I think it’s disgusting to see those images,” she said. “It harkens back to the United States turning its back on Jews as they were seeking refuge from the Holocaust.”
Gonzales, a community organizer and Yale graduate, sees a troubling pattern in both the President’s edicts and actions. “When you put babies in cages,” as U.S. Customs and Border Protection has with the children of some undocumented immigrants, it sends a message, she said. “There’s always been attempts to try and classify Latinos as not being American enough. At what point do we get to say, ‘we enjoy full privileges of American citizenship.’