A Georgetown Law School professor and a University of Minnesota law professor may have surprised the liberal readers of The New York Times. The pair argued in a guest opinion essay that President Donald Trump may hold a powerful legal case on the issue of birthright citizenship.
"When they finally consider this question, the justices will find that the case for Mr. Trump's order is stronger than his critics realize," Georgetown Law professor Randy E. Barnett and University of Minnesota law professor Ilan Wurman wrote of the Supreme Court in a guest essay published on Saturday.
The headline firmly stated, "Trump might have a case on birthright citizenship."
Trump's decision to issue an executive order ending birthright citizenship for children of illegal immigrants has faced significant opposition in the federal court system, with U.S. District Judge Joseph N. Laplante in New Hampshire temporarily blocking the order on Monday.
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After explaining the historical and legal history behind birthright citizenship, including the text of the 14th Amendment which 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," Barnett and Wurman tackled the issue of children of parents who are "present in the United States illegally."
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"Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?" the professors asked.
"Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity," Barnett and Wurman wrote, referencing legal definitions of citizenship. "They gave no obedience or allegiance to the country when they entered - one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws."
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"Such persons can even be summarily removed from the country without judicial procedures of the sort that would protect citizens," the professors continued. "If the allegiance-for-protection view informed the original meaning of the text, then they and their children are therefore not under the protection or 'subject to the jurisdiction' of the nation in the relevant sense."
Barnett and Wurman also addressed the executive order's "exclusion of children born to mothers who are 'lawful but temporary' residents is a more complicated question not addressed here."
"And whether Congress ought to grant naturalized citizenship to children born to those illegally present in the United States is a policy issue distinct from whether the 14th Amendment has already done so," the professors wrote. "The Supreme Court has, in a footnote, presumed that the 14th Amendment's jurisdictional phrase applied equally to people who are here illegally, but the issue was neither briefed nor argued in that case; nor was it material to its outcome."
Fox News' Greg Norman contributed to this report.
