Birthright citizenship not the President’s to change, says KU legal scholar

There is a really short answer to the question regarding President Donald Trump’s power to end birthright citizenship. According to a University of Kansas constitutional law professor, he doesn’t have the power to end the practice.

“No President can alter the birthright citizenship rule,” said Lumen “Lou” Mulligan, Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas. “The 14th Amendment to the United States Constitution, Section 1 states, ‘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. That, by all accounts, if you were to look at the debates about that provision in the Senate back in 1866, as well as early case law clearly states that establishes so-called birthright citizenship.”

You can find lawyers who will argue the contrary side, but Mulligan sees them as outliers.

“There is a small group of folks who believe that the phrase in the 14th Amendment, ‘subject to the jurisdiction thereof’, means that if a person is in the United States illegally, their children born in the United States don’t become citizens.”

Mulligan doesn’t see that argument as compelling.

“Folks who are in the United States illegally are assuredly subject to the jurisdiction of the United States,” Mulligan said. “The United States government can arrest those people. It can deport those people. Why? Because they are subject to the jurisdiction of the United States.”

Even if the 14th Amendment did not apply, there’s another Constitutional provision that does.

“The President couldn’t change it,” said Mulligan. “Article I, Section 8 of the Constitution empowers Congress to control immigration and naturalization.”

Given the current partisan divide in the legislative branch, it is almost certain there would be no Congressional movement on the question, if it were presented.