— President Trump, in remarks to reporters, Aug. 13, 2020
A legal adviser and spokesperson for President Trump’s reelection campaign questioned the citizenship of Sen. Kamala D. Harris, a California native and the presumptive Democratic nominee for vice president. Later in the day, Trump said Harris possibly “doesn’t meet the requirements” to serve as vice president.
Harris’s citizenship is not under any serious question, legal experts told us.
For years, and as a presidential candidate in 2016, Trump stoked the “birther” conspiracy theory that President Barack Obama was not born in the United States. Now, the citizenship of another prominent African American politician is being challenged with no evidence.
Harris was born in Oakland, Calif., on Oct. 20, 1964. The 14th Amendment and a Supreme Court decision from 1898 give citizenship to people born in the territorial United States, according to constitutional law experts.
Trump perhaps knows this, because he announced in 2018 that he would try to end birthright citizenship with an executive order, which was never released.
The Constitution requires the president and vice president to be natural-born U.S. citizens and at least 35 years old.
The 14th Amendment was adopted in 1868, repudiating the Supreme Court’s 7-to-2 decision in Dred Scott v. Sandford, an 1857 ruling that denied citizenship to people of African descent born in the United 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,” the amendment says. The Supreme Court ruled in 1898 that this right to citizenship covered Wong Kim Ark, who was born in San Francisco to Chinese nationals legally residing in the United States.
Harris’s mother, Shyamala Gopalan, was born in India and came to the United States at age 19 to earn a PhD in nutrition and endocrinology at the University of California at Berkeley. Her father, Donald Harris, who is Black, arrived from Jamaica in 1963 to earn a PhD in economics from UC-Berkeley. (Note: We previously said Harris’s mother came to the United States at age 25. She earned her PhD at age 25, but came at age 19.)
Trump referenced and Ellis retweeted an op-ed in Newsweek by John C. Eastman, a law professor at Chapman University and senior fellow at the Claremont Institute, that posited Harris might not be a natural-born citizen, depending on her parents’ immigration status when she was born.
The op-ed incorrectly dismisses relevant parts of the Supreme Court’s ruling in the 1898 Wong Kim Ark case, legal experts told us. Stephen H. Legomsky, a professor at the Washington University in St. Louis School of Law and former chief counsel of U.S. Citizenship and Immigration Services, said “there is not a shred of doubt as to Kamala Harris’s legal eligibility to be either the vice president or the president.”
“A handful of fringe academics have seized on the requirement that one must be not only ‘born or naturalized in the United States,’ but also ‘subject to the jurisdiction thereof,’ ” Legomsky wrote in an email, citing language from the 14th Amendment. “But the latter clause has no applicability to Kamala Harris.”
“The only people to whom that clause denies birthright citizenship are (1) American Indians born on tribal reservations (because Indian lands were considered to be a separate sovereign) and (2) the children of either enemy occupiers or foreign diplomats (because those were the categories included in the English common law from which the phrase was taken),” Legomsky added. “The Supreme Court in Wong Kim Ark specifically so held, and it has never once departed from that interpretation.”
Here’s that section of the Supreme Court opinion, as written by Justice Horace Gray:
“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
We sent questions to the Trump campaign and did not get responses. In a 2018 interview with Axios shortly before the congressional midterms, Trump said he would be releasing an executive order to end birthright citizenship — which never came. Congressional leaders from both parties and legal experts quickly dismissed Trump’s plan and said it would not pass legal muster because birthright citizenship is in the Constitution.
“We’re the only country in the world where a person comes in, has a baby and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” Trump stated falsely at the time. Birthright citizenship is the law in more than 30 countries, including Canada and Mexico.
“One of the hallmarks of the U.S. Constitution, by virtue of the 14th Amendment, is that it directly grants citizenship to those born in the United States, regardless of the ancestry of their parents,” Richard Pildes, a constitutional law professor at New York University School of Law, told HuffPost in a report documenting how a new strain of “birther” attacks on Harris has begun to spread. The United States, Pildes explained, adheres to the principle of “jus solis,” in which citizenship flows from birth “on the soil,” rather than “jus sanguinis,” in which it flows “from blood.”
Andrew Bates, a spokesman for Joe Biden’s presidential campaign, said that Trump “was the national leader of the grotesque, racist birther movement with respect to President Obama” and that his campaign was trying to distract from the administration’s record on handling the coronavirus pandemic with “demonstrably false lies.”
The Pinocchio Test
In 2018, Trump said he would end birthright citizenship. This year, the president and a legal adviser for his campaign are suggesting birthright citizenship perhaps never existed, at least not for some people born to immigrant postgraduate students in California in the 1960s, or at the very least not for one of them: Harris.
Which one is it? When the last national election was coming up, in 2018, birthright citizenship was real and Trump made empty threats to end it unilaterally. This election year, apparently, it’s not so real now that a California-born woman from Jamaican and Indian parents is running on the Democrats’ presidential ticket.
As explained above, and as Trump himself has acknowledged, the Constitution grants citizenship to people born in the territorial United States. Trump earns Four Pinocchios.
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