Donald Trump is misreading the Constitution when he says its phrasing would allow so-called "anchor babies" to be deported from the United States, John Yoo former Justice Department deputy assistant attorney general, tells
Newsmax TV.
"The text of the 14th Amendment … says all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. So right here, the Constitution's text is pretty clear. It says people born in the United States are citizens," Yoo said Wednesday on "The Steve Malzberg Show."
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"The legal scholars that Donald Trump's referring to read a lot into this phrase, 'and subject to the jurisdiction thereof.' They say that means that it must be the case of foreign citizens in the U.S. are not subject to U.S. jurisdiction, they owe their allegiance to another country.
"But that's a misreading of the text. 'Subject to the jurisdiction' means they're on our territory and we can enforce our laws on them, which we can do with anybody on our territory."
Yoo, a law professor at UC Berkeley, agrees that the Founding Fathers never anticipated the kind of immigration problems being experienced in the United States today, and "the idea that people might come to the US, have a kid, leave, just for the purpose of having a child who is a citizen."
"On the other hand … the 14th Amendment is really a great achievement of the Republican Party, it's a product of the Civil War. One of its main purposes was to overrule Dred Scott," he said, referring to an African American slave who unsuccessfully sued for his freedom in 1857.
"The problem with Dred Scott was that you had people in the courts and in Congress trying to say, well these people born in the United States were not citizens — and they were referring to freed slaves — some people were."
Trump, the Republican Party's front-runner, and other contenders have called for amending the Constitution to end the right of automatic citizenship.
Yoo — author of
"Point of Attack: Preventive War, International Law, and Global Welfare," published by Oxford University Press — said a number of countries grant a child's citizenship based on the citizenship of their parents, not the territory where they're born.
"But that's what the 14th Amendment requires, so yes, a president in 2017 could go through that whole effort, but the court's going to find it unconstitutional," Yoo said.
"There's an old Supreme Court course in the late 17th century involving the parents of Chinese citizens who came to California. They could never become citizens under federal law because of something called the Chinese Exclusion Act, but their child was born here and there's a Supreme Court case that said that child was a citizen even though California tried to prevent him from being one.
"So based on that precedent and where the Supreme Court's gone, I don't think that kind of law would have a great chance of success in our courts."
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