Why Would President Trump Limit Citizenship for Military Children Born Overseas?

U.S. Base in Germany

At first glance, this makes no sense. Our troops make great sacrifices for our freedom. Deployments are usually hard on families. Why, then, would the president enact a policy that denies citizenship to children born in places such as Germany, Kuwait, South Korea and other foreign countries?

The short answer has two parts: 1. He is determined to change a citizenship right that has existed in the U.S. since 1608. 2. To do this, his best shot is to begin by invoking his authority as Commander-in-Chief. In other words, he is cynically using military babies to start building a larger case for stripping citizenship from a much broader group of civilians.

Some history: In the reign of Edward III, after plague and war forced English subjects to leave the kingdom, questions arose concerning children born in foreign lands: Could they inherit property in England?

A statute in 1368 by Edward III recognized that infants born in Calais “and elsewhere within the lands and seignories pertaining to the king beyond the sea” had the same inheritance rights “as other born infants within the realm.”

Edward extended birthright citizenship to babies born to ex-pat English people because this would allow those French-born “Brits” to inherit land in London. In other words, this was a way to incentivize people to come back to a devastated isle that lost one-third of its people and much of its economy.

The U.S. has enacted similar statutes with fairly similar reasoning. We want people to serve in our military and not put their kids’ citizenship at risk.

But here is the kicker: The president can probably win this case because this grant of citizenship is not in the Constitution (as is the main birthright clause, stating that “all persons born or naturalized in the United States are citizens”). Plus, it’s very hard to find court cases that limit the president’s powers as Commander-in-Chief.

The Trump lawyers have been smart about crafting the opening phase of an immoral and unconstitutional assault on the main birthright citizenship clause.
(Why do I say immoral? Because the likely consequence of ending birthright citizenship is that these children are "stateless"-- they are not U.S. citizens, and not likely citizens of any other country. They can be deported out to sea.)
If you want to read a fascinating opinion—and a recent one at that— check out Elliott v. Cruz, 137 A.3d 646 (Pa. 2016), here https://caselaw.findlaw.com/pa-commonwealth-court/1733401.html.

It’s about Ted Cruz, born in Canada to an American mother. A proxy for Donald Trump—a voter in Pennsylvania— sued to have Cruz declared as foreign-born. That would make him ineligible to be president—another form of birtherism on the part of Trump. The court ruled in favor of Cruz, stating in part:

The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries. Their English forebears had made certain that the rights of such children were protected, and it is hardly likely that the Framers intended to deal less generously with their own children. The evidence, although not overwhelming, unquestionably points in the direction of such generosity.