(New York) History has not forgotten the name of Wong Kim Ark, a simple cook born in San Francisco in 1870. In August 1895, upon his return from a stay in China, this son of a Chinese trader was barred from entering the United States, where he had spent most of his 25 years.
Published at 6:00 a.m.
Mr. Wong owed this refusal to the Chinese Exclusion Actwhich since 1882 allowed the American government to suspend the immigration of Chinese nationals. He challenged his denial of citizenship in court. The United States Supreme Court ruled in favor of his case in 1898, confirming that the 14e Amendment to the Constitution conferred American citizenship on anyone born in the United States, regardless of the status of their parents, with few exceptions.
One hundred and twenty-seven years later, Donald Trump seems to dream of seeing the current Supreme Court overturn this emblematic decision. One thing is certain, he promises to eliminate automatic citizenship for children born on American soil to parents in an irregular situation, from the first day of his return to the White House.
“We have to put an end to it,” the president-elect said in an interview with the NBC show Meet the Press last month. “It’s ridiculous. »
“Did you know we are the only country in the world to have it? “, he added, alluding to what jurists call the soli juiceor right of the ground. “Do you know that? There is no other country. »
In fact, there are 32, including Canada and France. In these two countries, land rights are also contested by right-wing parties.
From Canada to France
In its platform, the Conservative Party of Canada calls on the government to legislate to “totally remove the right to birthright citizenship in Canada, unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.” The promoters of such a reform see it as a way to counter “birth tourism”, which allows foreign nationals to automatically obtain citizenship for their children born in Canada.
In France, Marine Le Pen tabled a bill in 2018 to abolish land law. And his party, the National Rally, is defending this proposal these days in a petition in which it affirms that land law “threatens the balance of all of France”.
“A true suction pump, he transforms our country into an illusory El Dorado, to the detriment of his own citizens,” we can read in the petition.
In the United States, the abolition of land rights is just one of the measures that Donald Trump has committed to implementing to combat illegal immigration following his inauguration as 47e president.
Closing the southern border is another, which could be justified by a public health emergency due to the arrival of migrants carrying diseases, according to the New York Times.
In an article published last week, the daily reveals that advisers to the president-elect have spent the last few months trying to find an illness that could help them defend this radical measure. Tuberculosis and other respiratory illnesses are among the options suggested by the incoming administration’s allies at the U.S. Border Patrol.
Donald Trump’s advisors are also juggling the idea of bringing back “Title 42”, this health system put in place in the wake of the COVID-19 pandemic to immediately expel migrants without visas to Mexico, including asylum seekers, in the name of the fight against the virus.
A fundamental amendment
But the abolition of land rights would have a particular symbolic charge. Because it would eliminate a principle that is integral to the repudiation of the history of slavery in the United States.
“It’s a fundamental part of our Constitution,” says Ilya Somin, a professor at the Antonin Scalia School of Law at George Mason University, a school named in honor of the late justice who was long the conservative pillar of the Supreme Court.
The 14the amendment was ratified in 1868 to overturn the ruling Dred Scott of our Supreme Court which said that black people cannot be citizens of the United States.
Ilya Somin, professor at the Antonin Scalia School of Law at George Mason University
The first article of the 14e amendment is clear. It opens with this sentence: “Every person born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States or of the State wherein he resides. »
The next administration could challenge the meaning of this amendment by refusing to issue documents confirming their citizenship, such as passports and social security cards, to children born on American soil to illegal parents.
Such a refusal would be the start of a legal battle likely to end up before the Supreme Court. According to Professor Somin, “the least bad argument” of the second Trump administration would be to say that “illegal immigrants are not subject to the jurisdiction of the United States.”
“But this is a weak argument, because illegal immigrants must obey the laws and, for this reason, are subject to the jurisdiction of our country. »
Does this mean that this cause is lost in advance for Donald Trump?
“It’s difficult to be certain until the case has been presented to the Supreme Court,” replies Ilya Somin. But it seems to me that the most likely outcome is that the administration’s opponents will win. »
Is land law more in danger in Canada and France than in the United States?
