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Hill, Boozman question Trump's plan to issue order on birthright citizenship

By Frank Lockwood

Two members of the Arkansas congressional delegation are questioning whether it's wise for President Donald Trump to try to unilaterally change birthright citizenship.

Arkansas law professors say White House efforts to alter citizenship law will face high legal hurdles.

U.S. Rep. French Hill, a Republican from Little Rock, said congressional action is preferable.

"The immigration system is in dire need of reform, and I believe the best way to change it is through legislation, not through executive order. President [Barack] Obama tried to change immigration through executive order during his administration and the policy was blocked by the federal courts," Hill said via text message.

U.S. Sen. John Boozman, who has supported legislation altering birthright citizenship, is also skeptical.

The issue "needs to be addressed and he's co-sponsored legislative fixes in the past but there are legitimate concerns about whether the president has the authority to act ... without Congress," said Patrick Creamer, a spokesman for the Rogers Republican.

The 14th Amendment, ratified after the Civil War, 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."

A federal statute, 8 USC Section 1401, uses similar language.

An 1898 U.S. Supreme Court ruling found that California-born Wong Kim Ark was a citizen by virtue of his birth, despite being the son of Chinese subjects legally domiciled in the U.S. The ruling was 6-2.

Since then, unless the parents are representatives of a foreign power, babies born on nontribal land in this country have automatically obtained U.S. citizenship. (A 1924 law grants full citizenship to all American Indians.)

While the Supreme Court could overturn its previous ruling, that would represent a "very big shift," said Beth Zilberman, an assistant professor at the University of Arkansas School of Law.

"The precedent has been set for quite a long time. It would be quite a departure," she said.

Josh Silverstein, a law professor at the University of Arkansas at Little Rock's W.H. Bowen School of Law, said the Supreme Court could differentiate between Wong Kim Ark, whose parents were legally domiciled in the U.S., and the children of those who are residing in the U.S. illegally.

"Some have argued that the Supreme Court's never resolved this question because there's never been a case that involved illegal immigrants. I think that's the weaker position, but the position isn't crazy," he added.

With a law already on the books, the White House's options are limited, he said.


"Until that statute is repealed, there's nothing that the president can do via an executive order," Silverstein added.

Congress, on the other hand, could take the lead.

The Birthright Citizenship Act of 2017, which seeks to withhold citizenship from the children of illegal immigrants, has nearly 50 sponsors and co-sponsors, including U.S. Rep. Steve Womack, a Republican from Rogers.

U.S. Rep. Rick Crawford co-sponsored similar legislation a few years ago.

The Republican from Jonesboro is still reviewing Trump's proposal.

"He wants to look over, in greater detail, what the president's talking about," a spokesman said.

Womack wasn't immediately available for comment. He had previously stated that giving the children of illegal immigrants U.S. citizenship rewards illegal behavior.

U.S. Sen. Tom Cotton, a Republican from Dardanelle, is also reviewing Trump's proposal, a spokesman said.