The 14th Amendment Debate – USA Gov Policy

President Trump’s decision to write an Executive Order regarding the citizenship of children born to illegal aliens has produced a broad national debate on the constitutionality of his proposal. Opponents claim that the move would violate Section One of the 14^th Amendment:

“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The practical and financial need to address the issue is clear, as noted in statistics provided by The Center for Immigration Studies (CIS):

In 2014, one in five births (791,000) in the United States was to an immigrant mother (legal or illegal). CIS best estimate is that legal immigrants accounted for 12.4 percent (494,000) of all births, and illegal immigrants accounted for 7.5 percent (297,000).
The 297,000 births per year to illegal immigrants is larger than the total number of births in any state other than California and Texas. It is also larger than the total number of births in 16 states plus the District of Columbia, combined.
The estimated 28,000 births to illegal immigrants in just the Los Angeles metro area is larger than the total number of births in 14 states and the District of Columbia.
Among the native-born, a large share of new mothers (42 percent) are either uninsured or on Medicaid. The rate is even higher among new mothers who are legal immigrants (47 percent) and higher still for new mothers who are in the United States illegally (67 percent). Almost all of these births are likely paid for by taxpayers.
Of all births likely paid for by taxpayers, about one in four (429,000) was to an immigrant (legal or illegal). Illegal immigrants account for 11 percent (198,000) of all publicly funded births, and legal immigrants are another 13 percent (231,000).
CIS estimates that the cost to taxpayers for births to immigrants (legal and illegal) is roughly $5.3 billion — $2.4 billion of which is for illegal immigrants.

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Objections to the President’s plan center on whether the policy change requires a Constitutional Amendment. It is helpful to understand the historical context.

The 14th, ratified in 1868, was one of three amendments passed in the aftermath of the Civil War, which were intended to abolish slavery and establish civil and legal rights for black Americans. The 13^th ended slavery and the 15^thprohibited restrictions on voting due to race, color, or “previous condition of servitude.” It is clear, then, that the purpose of the 14^th amendment was to address the citizenship of ex-slaves.

Following the conclusion of fighting between the Union and the Confederacy, the Reconstruction-era process of incorporating the Southern states back into the national government faced a number of obstacles, including the actions by formerly rebellious jurisdictions to oppress freed blacks. Democrats continued to oppose the Republican move to recognize the former slaves as full-fledged citizens.

As History.com explains, “Though the Union victory had given some 4 million slaves their freedom, the question of freed blacks’ status in the postwar South was still very much unresolved… Even as former slaves fought to assert their independence and gain economic autonomy during the earliest years of Reconstruction, white landowners acted to control the labor force through a system similar to the one that had existed during slavery.”

The need for the 14^th Amendment to establish recognition of ex-slaves as full-fledged citizens was clear. But others born in the U.S. were not covered by it. It was not until June 2 of 1924 that Native Americans were given citizenship, when President Calvin Coolidge signed the Indian Citizenship Act, which provided that “all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States…”

A close reading of the first sentence of 14^th Amendment also provides a conclusion that it does not apply to births to illegal aliens and tourists:

“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.”

Even if the clear historical context of the 14^th Amendment as a means to protect ex-slaves is wholly ignored, the existence of that key part of the very first sentence specifically refutes any argument that it applies to births of illegal aliens or others merely temporarily within the nation.

Illustration: Battle of Stone River during the Civil War (Smithsonian Institution)

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.