By Terry Connelly, Dean Emeritus of GGU’s Ageno School of Business
In an effort to provide a non-political and objective discussion of what must be taken seriously as a significant change of US policy if not Constitutional Law, here are the main questions that should be explored by advocates of withdrawing birthright citizenship, such as President Trump and Senator Lindsey Graham, in any form. These proposals come after decades of understanding in law and practice – concerning the meaning of the first sentence of the 14th Amendment to the US Constitution – and raise serious economic and business issues, depending on how the various legal and Constitutional issues President Trump’s proposed executive action raises.
- Does the proposed Executive Order mean to apply only to future children borne of undocumented aliens present in the US, or does it apply to any noncitizen children who are born here?
- What is the future child’s father is undocumented but the mother is a US citizen? What if the mother is undocumented, but the father is a US C citizen?
- What is the future child is carried by a surrogate mother who is undocumented, but is also the biological offspring of a US citizen?
- What if the future child is adopted legally at birth by US citizens, although he or she was borne to an undocumented person?
- Does President Trump or Senator Graham intend to not only ban birthright citizenship prospectively but also revoke existing birthright citizenship they see as wrongfully obtained during well over a century of established interpretation of the 14th Amendment? (The Trump administration has already asserted the right to revoke naturalized citizenship obtained because of an inaccurate statement in the naturalization background documents submitted by the applicant for such status.)
- If the answer to #5 is “yes,” does part of the rationale for this policy trace to the assertion by Justice Brett Kavanaugh that Presidential power extends to the right to determine, like the Supreme Court itself, what acts of government are or are unconstitutional?
- How many “birthright citizens” are currently alive and living in the US? Would they all be subject to immediate deportation under the Executive Order (or Graham’s proposed legislation) once the Supreme Court declared it to be Constitutional?
- If not, how many generations do they plan to go back? What percentage of the American population would lose their citizenship and be subject to deportation? Would the federal government or the birthright citizen in question have the burden of proof of citizenship status in this event?
- If they go back to older generations, what would happen to their Social Security, Medicare and FICA contributions as taxpayers?
- What would be the effect on the US economy, Gross Domestic Product (GDP), job openings, housing prices, consumer spending and business investment by the effort to purge citizenship and voting rolls of millions of persons now living in the US (or even abroad) whose current citizenship status would be generationally infected and tainted by an ancestor’s original and Constitutionally wrongful (according to Trump and Graham) asserting of birthright citizenship?
Two “Bonus Questions” Regarding The Constitution
The 14th amendment to the US Constitution, section 1, first sentence, reads: “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 in which they reside.”
The phrase “subject to the jurisdiction of thereof” as a qualifier in the Amendment – generally understood by legal scholars to refer to the offspring of representatives of foreign governments to the US who hold diplomatic immunity while here – has been cited by repeal advocates associated with the Trump/Graham proposals as disqualifying mere ”birthright” citizenship claims by children of undocumented persons because such children are not “subject” to US jurisdiction lawfully because of the undocumented status of their parents.
But if that is the case, here are two more interesting and unresolved legal questions:
11. If they (children? Or who please?) are not subject US jurisdiction, how can the government legally prosecute them for any crime, deport them, require them to pay taxes, etc.?
12. Can a person be subject to US jurisdiction for some purposes (disqualifying citizenship) and then simultaneously become subject for another purpose (their own arrest and deportation)?
Regardless of one’s political opinions, the Congress and Supreme Court may have to answer some or all of these questions.
About Terry Connelly
Terry Connelly is an economic expert and Dean Emeritus of the Ageno School of Business at Golden Gate University. With more than 30 years’ experience in investment banking, law and corporate strategy on Wall Street and abroad, Connelly analyses the impact of government politics and policies on local, national and international economies, examining the interaction of global financial markets, the U.S. banking industry (and all of its regulatory agencies), the Federal Reserve, domestic employment levels and consumer reactions to the changing economic tides. He holds a law degree from NYU School of Law and his professional history includes positions with Ernst & Young Australia, the Queensland University of Technology Graduate School of Business, New York law firm Cravath, Swaine & Moore (corporate, securities and litigation practice in New York and London), global chief of staff at Salomon Brothers investment banking firm and Cowen & Company’s investments, where he served as CEO. In conjunction with past Golden Gate University President Dan Angel, Connelly co-authored Riptide: The New Normal In Higher Education (2011). Riptide deconstructs the changing landscape of higher education in the face of the for-profit debacle, graduation gridlock, and staggering student debt, and asserts a new, sustainable model for progress. He is a board member of the Public Religion Research Institute, a Washington, DC think tank and polling organization, and the Cardiac Therapy Foundation in Palo Alto, California. Connelly lives in Palo Alto with his wife.
The views expressed in this post are the author’s do not necessarily reflect those of GGU or its staff.