STEVE INSKEEP, HOST:
The 14th Amendment to the Constitution is clear. The first sentence begins (reading) all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.
All persons born here are citizens. President Trump says he can go around that. Days before an election that he wants to make about immigration, the president talked of trying to eliminate citizenship for children born in the U.S. to immigrants who are here illegally. He says he could use an executive order, although the Republican speaker of the House, Paul Ryan, says that is not possible. Michael Anton is with us next, a former White House aide who has written in support of ending birthright citizenship in that particular case.
Mr. Anton, welcome back to the program.
MICHAEL ANTON: Hi. Thank you for having.
INSKEEP: I have to note the president raised this idea in his campaign years ago but hasn't tried it since; now raises it suddenly days before the election. Is this anything more than an election ploy?
ANTON: Well, I think so. First of all, he raised it in response to an asked question. So everyone who's looking for some kind of, you know, deeply cynical motive here is wrong. He was asked the question. Apparently it's something he had been discussing with his staff for many weeks.
INSKEEP: Yeah. He did say he'd been talking about it, yeah.
ANTON: A reporter got wind of that and asked him about it. And he gave an honest answer. I also, you know, I have to take issue with what you said in your opening, that the 14th Amendment is clear and is therefore requires this practice. Well, you read the amendment.
INSKEEP: Right.
ANTON: And I think you - I'm pretty certain I know - you're misinterpreting the central cause subject to the jurisdiction thereof. That does not mean simply that you're subject to U.S. law. It's long been known in international law that any person who comes to another country for any reason - whether they're there as a tourist, whether they're on business, whether they're just transiting through as a matter of travel - they're subject to the law of that country while they're there.
INSKEEP: Yeah.
ANTON: So being physically present means you are subject to the law. In a sentence defining citizenship therefore, subject to the jurisdiction must have another meaning...
INSKEEP: Well...
ANTON: ...Or else it's superfluous...
INSKEEP: Sure.
ANTON: ...And redundant.
INSKEEP: Well, there's this subject to the jurisdiction thereof. When I've done some reading on this, it appears to me that that applies to people like foreign diplomats who have immunity from American law. But are you going to tell me that if someone is here illegally - they've overstayed a visa, they've had some kind of violation like that - they are no longer subject to the jurisdiction of the United States? They can't be arrested...
ANTON: They're not subject...
INSKEEP: ...They can't be touched.
ANTON: If you read the debate on the - the ratification debate - both of the 1866 Civil Rights Act, which is in a sense the 14th Amendment in statute law - and the 14th Amendment itself passed by the same Congress - the people who ratified - who drafted that law and - the Congress had to pass it, then it was ratified by state legislatures - they make clear that subject to the jurisdiction means not owing allegiance to any foreign power or any other government.
INSKEEP: OK. Let me just stop you for a second. I'm going to note - I'm going to stipulate you've argued there's a legal argument to make here, that this is something you might be willing to take to court, that there is an exception you could try to get a court to carve out. There was an 1898 Supreme Court ruling that affected - that was a slightly different case than what you're talking about - that affirmed you couldn't deny citizenship to a Chinese man. But you're saying there's an argument...
ANTON: To a child - again...
INSKEEP: Let me just stop you for a second. I'm...
ANTON: ...The 1898 case applied only to the child of permanent, legal residents...
INSKEEP: Let me...
ANTON: ...Not to the child of illegal immigrants...
INSKEEP: Let me stop you...
ANTON: ...And I could argue that that case was wrongly for other reasons...
INSKEEP: OK. So you could...
ANTON: ...But it's kind of complicated to explain on the radio.
INSKEEP: Exactly. So let's just stipulate you're saying you would try for this exception. Let's just note since you've gone back into history, the 14th Amendment is there to reverse the Dred Scott decision by the Supreme Court. That was a decision that defined black people out of citizenship.
ANTON: Right.
INSKEEP: Setting aside the law, let's talk about the merits. Why is it a good idea from a conservative point of view for the government to go back into the business of defining people out of citizenship?
ANTON: Well, look; every country has to define who its citizens are and who they are not.
INSKEEP: And the Constitution has done that.
ANTON: I mean, that's the essence of being a country. The United States Constitution did not define citizenship before the Civil War. So after the Civil War, the 13th Amendment obviously freed all slaves. Certain states said, OK, fine, you can free the slaves but the states - we, the states, have the power to decide citizenship or not. And we're not going to make any freed slaves citizens.
INSKEEP: But why is it a good idea now to define people out of citizenship?
ANTON: Because the United States has a massive illegal immigration problem. Look; we've been hearing since, you know, the early 2000s at least that we have, oh, maybe 11 or 12 million illegal immigrants in this country. And just recently within the last month, Yale University released a study saying actually we think the real number is more like 22 million, so about twice what people thought.
INSKEEP: Well, setting - so we're talking - you want to define millions of children of those people out of citizenship, it sounds like what you're saying.
ANTON: Well, look; no one's actually talking about applying this retroactively. What we're saying...
INSKEEP: But what would stop that? If your definition prevails, Department of Homeland Security right now is going to naturalized citizens and working to look for reasons to revoke their citizenship. If you prevail, why would we assume - wouldn't millions of people...
ANTON: No, no. Look; first of all, I haven't seen any draft of any kind of order and neither have you. Nobody has. It's just been discussed. Second of all, what we need to do - at a minimum, what we need to do is the country needs to say, look; we've made a mistake. We've misinterpreted our law for 50 years in a way that has not benefited American citizens.
INSKEEP: One hundred fifty years.
ANTON: We're not going to do that anymore. So for - you know, for instance, people who think that they're going to come to this country and be able to settle down under a lax interpretation of U.S. law, we need to make it clear that the American people are not going to do that anymore. But, you know, we could easily say we're going to honor what we have done in the past even if it was a mistake under the American Constitution. We're just not going to do it in the future. I think that's reasonable.
INSKEEP: Could say that, although we don't know where it would end. Michael Anton, thanks so much. I really appreciate it.
ANTON: Thank you.
INSKEEP: Michael Anton is a former White House aide and writer. Transcript provided by NPR, Copyright NPR.