Can Birthright Citizenship Be Overturned Without A Constitutional Amendment


Bill O’Reilly argued with Donald Trump over Trump’s belief that the anchor baby law could be overturned without a constitutional amendment. Andrea Tantaros said O’Reilly was wrong about the issue in a Wednesday appearance on a Fox show called Outnumbered. When she appeared on O’Reilly’s show later in the evening, he concluded that he was right based on a 1985 ruling, INS v. Rios-Pineda.

Is Bill O’Reilly right?

The Citizenship Clause of the Fourteenth Amendment to the United States Constitution 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.”

It was however only intended for blacks who were deprived of their right to citizenship by slimy racists. It was later extended to Native-Americans by an act of congress.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: “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.”

The drafters had no intention of conferring citizenship on children of aliens who just happen to be born in the U.S.

The author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

In INS v. Rios-Pineda (1985), the Court said in dicta, or language not directly part of the holding in the case, that children born in the United States to illegal immigrants are citizens. The Court had ruled in Plyler v. Doe (1983) that another part of the Fourteenth Amendment, the Equal Protection Clause, does apply to illegal immigrants because they are “persons within the jurisdiction” of a state. This is a different legal standard than that used for the Citizenship Clause.

The right defined Plyler v. Doe was merely a footnote and it was the basis for the 1985 case.

Out of nowhere, in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)

Americans have the right to decide who becomes a citizen. It must be in our control, especially given the welfare state we currently have in place.

The most recent judge to weigh in on the issue as to whether a constitutional amendment would be necessary to change the policy is Judge Richard Posner who remarked in a 2003 case that “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.” He explained, “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” Posner also wrote, that automatic birthright citizenship is a policy that “Congress should rethink” and that the United States “should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.”

Numerous congressmen have proposed laws to change the alleged right but other congressmen have said it might not survive a constitutional challenge and suggested a constitutional amendment. Therefore, they’ve done nothing.

Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.

States have threatened to pass state legislation to stop it but critics argue that the child or parents could immediately sue the state for discrimination and that the federal courts would immediately force the state to issue the birth certificate.

An absurd report by an organization called the National Foundation for American Policy (NFAP) in 2012 asserted that revoking birthright citizenship would be bureaucratic, expensive, would result in a national ID card, and would not slow illegal immigration.

The Center for Immigration Studies disputed these conclusions, asserting in its own 2012 report that the NFAP’s claims were “unsupported”, that a bureaucratic overhaul would not be necessary, and that ending automatic birthright citizenship would not cost parents money, result in a caste system, or create stateless children.

One thing is certain, if we don’t do something, the uncontrolled immigration which is distorting our immigration law will continue.

Mark Levin’s Take On This Link



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  20 comments for “Can Birthright Citizenship Be Overturned Without A Constitutional Amendment

  1. Tia
    August 19, 2015 at 10:51 pm

    Why not give the infants citizenship when they are 18? Do not allow anyone who is not a citizen to have an anchor baby. Send them home with the child and when the child turns 18 they can return if they desire, but ONLY the child can return, not the parents. Until the age of consent, when they make their choice, the USA born child can hold dual citizenship, but the citizenship should NOT extend to the parents.

    • Chuck
      August 19, 2015 at 11:14 pm


    • David Mann
      August 22, 2015 at 12:06 am

      Ridiculous! You’d have “US citizens” growing up in another country. Then, these “citizens” might have 10 children of their own without ever setting foot in the U.S., all of whom, would be US citizens. They could hop on a plane when they turn 18 and come here and go to college for free (because they’re poor). Meanwhile, the real U.S. citizens have to take out student loans and pay for college. That’s crazy. This whole issue is crazy. The constitution (14th Amendment) clearly and unambiguously lays down 2 requirements for citizenship 1) you’re born here 2) you’re fully subject to jurisdiction of the USA. This excludes aliens and the children of foreigners visiting the U.S.. It’s very clear. Anchor babies have been unconstitutional since day 1.

  2. George Steele
    August 20, 2015 at 12:31 am

    It seems to me that “within its jurisdiction” and “subject to its jurisdiction” are, despite use of similar words, vastly different from one another. The first refers to the physical location of the individual – within the jurisdiction, or borders, of a state. So a state needs to afford equal protection of the law to people while they are in that state – irrespective of whether they are black or white, citizen or alien; no one is treated specially in the law by the state.

    Subject to its jurisdiction is another thing entirely – that refers to whether or not the state has legal rights to exercise control of that individual. A foreign-born national, who is a citizen of another country, is subject to the jurisdiction of that country. That’s why we have extradition laws, that’s why a country can demand return of its citizens from detention in another country, and conscript them into their military irrespective of their current geographic location – because they are subject to the jurisdiction of the country of which they are citizens.

    That flies dead in the face of the argument that the child of an illegal immigrant located in this country at the moment of birth is an American citizen – the mother country of the child’s parents have jurisdiction, because they are entitled to the presumption that not only the parents, but also the children thereof, are citizens of that country unless and until that citizenship is renounced formally and legally on the records of that country (also thereby forsaking any claim to protections afforded by that country). It’s charlatanism to conflate the two issues.

    The decision in Rios-Pineda was unanimous – but to what extent does extraneous verbiage included in the decision gain that stamp of unanimous approval when the result is to, in effect, create a law that was not advanced by the legislative branch? It seems to me that that in dicta passing statement, given that it directly flouts the express intent voiced by the legislator that wrote the law, Senator Howard, is at least a ruling in bad faith, weak on principle, and attackable as a result.

    So is O’Reilly right? Yes when he says that the ruling was handed down unanimously, and likely unassailably, ON THE PRIMARY HOLDING; but not necessarily when he says that this specific, questionable, non-central issue cannot be overturned. The whole decision – OK; this small stretch of prose within it? Open to question, and since he wants to deal with FACTS, then the whole story has to include this question to be fair and balanced.

    Then – what do you do with someone born here of illegal alien parents in 1985, and who has lived here for 30 years, and is married and has children, etc? Dealing with that is the province, most likely, of the President.

    • melehi
      August 20, 2015 at 11:48 am

      A Constitutional amendment or immigration law would suffice, but not for the reasons many have stated. Congress could simply write a law reaffirming the correct intent of the citizenship clause but stating that all people born in the U.S. who were mistakenly granted citizenship will retain said citizenship. That will ensure no one who has lived here 30 years will lose their citizenship but will ensure the anchor baby problem ceases going forward.

    • ralph shaffer
      August 20, 2015 at 2:21 pm

      What everyone, especially O’Reilly, seems to have missed in INS v Rios-Pineda is that what the court held 8-0 was that the attorney general had the authority he exercised. The issue of birthright citizenship was never challenged by the government and therefore was not in dispute in this case. Someone, please. tell O’Reilly to read the case himself.

      • S. Noble
        August 20, 2015 at 2:44 pm

        Thank you for this information. These hosts really need to be better informed before they go on TV and make declarations. Even Andrea Tantaros backed off.

  3. JD Henry
    August 20, 2015 at 7:47 pm

    I am sorry, I missed something. Where did O’Reilly get his law degree? When did he become a constitutional expert?

  4. Amy K.
    August 23, 2015 at 4:33 pm

    The comments by Messrs. Mann, Steele and Melehi are some of the clearest
    discussion I have seen on the topic of “birthright citizenship.” I appreciate
    their getting to the heart of the constitutional and legal principals that are
    entailed by the recent national conversation. Donald Trump, whatever you
    think of him, deserves credit for instigating this conversation on a topic of vital national concern. My ancestors came to the USA legally. I cannot agree with the oft-repeated canard that because we are a nation of immigrants, we have to let illegals crash our borders. The problem with border crashers is not that the crashers start out as crooks. Most are regular people desperate for work and security. The problem is that when they come illegally, they inevitably bring crime in their wake. They move about with the assistance of the lowest criminal scum in the world. There is a profit motive to assisting them. There is also a political
    motive to fomenting the conditions of instability that lead people to flee their homelands.
    The US should have immigration…it should have orderly, lawful immigration, immigration that serves our national and economic interest and does not undermine our own security.
    I live in Southern Arizona where we know first-hand about border issues. Across the street from me are some renters who have erected a lawn sign that is being distributed by various churches in the area. It concerns a Mexican woman ‘Rosa’ who has been accorded ‘sanctuary’ in a local church; the INS is aware of what is going on but has chosen so far not to go in after her. If she walks off the grounds, though, she gets picked up and deported. The sign says “We stand with Rosa.” Every time I see it I feel like adding to it “…and Ana … and Yolanda …
    and Hortensia … and Inez … and Isabel … and every other person who brings minor children and no spouse, is uneducated, does not speak English and has no employable skills.” Other than the USA acting in its unique insanity, what other country in the world encourages the mass on-demand resettlement of any and all comers?

  5. StormCat
    January 22, 2016 at 11:56 pm

    I liked it better when we only admitted free, White people. Can’t we go back to that? Please?

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