Politics

Trump and the ius soli: how things really are

Great sensation was caused by the fact that Donald Trump signed an executive order, it was said, against ius soli. Complaints have been raised from many quarters, both from a political and technical point of view. In fact, there are those who point out that jus soli is governed by the Fourteenth Amendment. It follows that a simple executive order certainly cannot repeal it.

So how are things really? In reality, with that decree the president did not repeal the ius soli. If anything, it has prescribed a more restrictive interpretation, maintaining that this principle cannot apply to the children of irregular immigrants or temporary visitors. A decision, that of Trumpwhich has a predominantly deterrent value. However, to understand the issue from a technical point of view, it is necessary to briefly take a step back.

The Fourteenth Amendment provides 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.” This device was approved in 1868 and its main purpose was to define the citizenship of freed slaves, who were born on American territory. In fact, let us remember that, three years earlier, the Thirteenth Amendment had abolished slavery.

Well, according to what we read in the text of the executive order, the current president does not repeal, nor could he do so, the ius soli, but prescribes its application in a restrictive sense. In other words, the fact that the Fourteenth Amendment speaks of people “subject to the jurisdiction of the United States” means that ius soli cannot be applied to the children of illegal immigrants or temporary visitors, as they would not be fully subject to American jurisdiction .

This does not mean that the decree will not likely face legal challenges. But it is not certain that such appeals will necessarily be successful. In 2018, the Heritage Foundation argued that “the text of the Fourteenth Amendment derives from the Civil Rights Act of 1866, which provided that ‘all persons born in the United States and not subject to any foreign power’ would be citizens.” Furthermore, American Indians and their children became citizens only when Congress passed the Indian Citizenship Act in 1924: it is clear that such a law would not have been necessary if the Fourteenth Amendment had unconditionally guaranteed citizenship to anyone born in American territory. In short, the executive order of Trump it could prove to be much more legally solid than what some believe.