Trump’s limits on birthrights bad for PH

Among the hundreds of executive orders (EOs) signed on Jan. 20 by United States President Donald Trump, the EO which unduly limits birthright citizenship—the inherent right to American citizenship of those born in the US—is plainly disadvantageous to the Fil-Ams (and many other nationals) and ultimately to the Philippines. Why? Because Fil-Ams remitted a whopping 40.9 percent of total remittances sent by all Filipinos working abroad, constituting by far the largest share of the $37.2 billion full-year 2023 remittances, followed meekly by Singapore (7.1 percent) and Saudi Arabia (third at 6.2 percent). With this backgrounder, may I offer my two cents worth on why this EO violates the US Constitution and is therefore void.

THE 14th AMENDMENT TO THE US CONSTITUTION solemnly declares: “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 is the bedrock of jus soli—citizenship is conferred by the place of birth. Thus, babies born in the US are US citizens regardless of the citizenship, if any, of their parents, unlike in the Philippines where citizenship is determined by jus sanguinis, that is, babies get the nationality of one or both parents. Thus, those born anywhere in the world of a Filipino mother and/or father are Filipinos at birth; or by constitutional fiat, “natural-born citizens.”

Consequently, by their birthright, babies born in the US whose mothers and/or fathers are Filipinos are dual citizens of both the US and PH. They are not required to do anything to obtain such citizenships. In fact, in my humble opinion, they already possess Philippine citizenship at their conception, not just at their birth. However, to possess US citizenship, the baby must be born, not just conceived, in America.

Trump, however, claims that the words “subject to the jurisdiction” of the US give him the authority to determine who does not have such birthright. Thus, according to him, no such birthright occurs (1) when the baby’s mother was unlawfully present in the US and the father was not a citizen or a lawful permanent resident of the US, and (2) when the baby’s mother’s presence in the US was lawful but temporary such as those with student, work, or tourist visas, and the father was not a citizen or lawful permanent US resident.

WITH DUE RESPECT, THESE TWO INTERPRETATIONS OF THE WORDS “subject to the jurisdiction” of the US are plainly strained and grotesque because everyone living or residing, whether lawfully or unlawfully, in America regardless of age, race, gender, or nationality are “subject to the jurisdiction of” the US, that is, they are required to follow the American Constitution and laws, including tax laws.

Who then are not “subject to the jurisdiction” of America? Answer: Ambassadors and other diplomats, their families, and officials of international organizations like the United Nations and their families who are granted diplomatic immunity. Their children though born in the US are not American citizens because they are “not subject to the jurisdiction” of the star-spangled nation.

In my humble opinion, this interpretation is backed by the historical reason for the passage of the 14th Amendment. In the 1857 case of Dred Scott v. Sandford, the Supreme Court of the US (Scotus) held that black slaves and their children were not protected by the Bill of Rights and could never be American citizens. The US Civil War was waged principally to abolish slavery and racial discrimination. And before being incorporated into the winning union of Northern states, the losing Southern states had to accept the freedom of slaves and the 14th Amendment that precisely allowed the formerly enslaved US-born blacks to become citizens of the American union. This interpretation allowing anyone born in the US to be a citizen thereof was reiterated in 1898 in US v. Wong Kim Ark and in 1982 in Plyler v. Doe.

ON THESE LEGAL GROUNDS, 22 US states, several organizations, and undocumented mothers sued in the federal trial courts. In fact, Judge John C. Coughenour of Seattle, an appointee of Ronald Reagan, a Republican, surprisingly issued a temporary restraining order stopping the implementation of the EO for 14 days pending a final judgment.

Note, however, that by its own terms (Section 2-b), the EO “shall apply only to persons who are born within the United States after 30 days from the date of this order.” In other words, the EO has no retroactive effect on babies born before Jan. 20, 2025.

Unlike here, the Scotus has no appetite to ingest original cases regardless of their importance or urgency. It exercises merely appellate jurisdiction from the US Court of Appeals and at times from the highest courts of the 50 states. Nonetheless, after going through the judicial mill, the cases will end up in the Scotus. How would the Scotus, with six out of its nine justices appointed by Republican presidents, (three by Trump during his first term) try to uphold this “blatantly unconstitutional” EO? Though Trump expects a resounding victory, will the Scotus surprise the world by thrashing the EO?

—————-

Comments to chiefjusticepanganiban@hotmail.com