Immigration

A Bad Argument on Birthright Citizenship (Updated)

A former Trump advisor thinks an Executive Order could end birthright citizenship. A federal judge appointed by President Trump explains why he's wrong.

|The Volokh Conspiracy |


Michael Anton is best known for penning the infamous, pseudonymous "Flight 93 Election" essay justifying conservative support for Donald Trump. After the 2016 election, Anton briefly joined the Trump Administration as a national security advisor. Now Anton is a research fellow at Hillsdale College and aspiring pundit.

In a recent Washington Post op-ed, Anton takes issue with birthright citizenship—the principle that those born within this country are citizens of the United States—and argues that President Trump could unilaterally end the practice of recognizing the citizenship of children born to illegal immigrants on U.S. soil. He is wrong on both counts—as one of Trump's own judicial appointees would be happy to explain.

The Fourteenth Amendment provides, in relevant part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . ." According to Anton,

the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. . . . The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don't.

Whatever Anton believes the Fourteenth Amendment "clearly" does or does not provide for, scholars who have examined the history have largely reached the opposite conclusion. Among those who have researched the subject is James Ho, former Texas Solicitor General and Counsel to the Senate Judicairy Committee, now a judge on the U.S. Court of Appeals for the Fifth Circuit appointed by President Trump.

As Ho explained in this 2007 op-ed the argument that the "subject to the jurisdiction thereof" language of the 14th Amendment excludes those born in the U.S. to illegal immigrants is based upon a faulty interpretation.

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship — but no one disputed the amendment's meaning. Opponents conceded — indeed, warned — that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

Anton's arguments to the contrary are based upon a selective (mis)reading of the relevant debates. The language "subject to the jurisdiction thereof" does not exclude the children of illegal immigrants, but those of foreign diplomats and the like. The former, whether they arrived here lawfully or overstayed a visa, are obligated to comply with U.S. law. The latter are not.

As Ho noted in another op-ed, the Supreme Court has repeatedly reaffirmed this understanding of birthright citizenship.

In 1898, the court held that a U.S.-born child of Chinese immigrants was entitled to citizenship. In United States v. Wong Kim Ark, it held that the "14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens."

The court reiterated this view in Plyler v. Doe (1982). The majority held—and the dissent agreed—that the 14th Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of illegal aliens. Likewise, in INS v. Rios-Pineda(1985), the court again unanimously agreed that a child born to an undocumented immigrant was in fact a U.S. citizen.

"The court has ruled only that children of legal residents are citizens," Anton claims, citing Wong Kim Ark, ignoring plain statements in subsequent cases making clear the "subject to the jurisdiction thereof" langauge applies to legal and illegal immigrants alike. (For a more complete explanation of the actual meaning of this clause, see this longer Green Bag article by Ho on the subject.)

Undeterred, Anton argues that Congress retains the power to deny citizenship to those born in U.S. territory to unlawful immigrants. Further, Anton maintains that if Congress won't act, the President can simply refuse to recognize the citizenship of such individuals by Executive Order, courts be damned.

Anton ends his piece: "Judges faithful to their oaths will have no choice but to agree" with a presidential decree refusing to recognize birthright citizenship. At least one federal judge—a judge appointed by President Trump no less—would beg to disagree.

UPDATE: Michael Anton responds to his critics here, largely focusing on the arguments in this piece by Garrett Epps. Daniel Drezner discusses Anton's argument and defense here.

Some readers point to this article by Peter Schuck and Rogers Smith in National Affairs, in which they argue:

Under the best reading of the Citizenship Clause of the 14th Amendment, the citizenship status of the American-born children of illegal immigrants is not mandated by the Constitution. Rather, this clause empowers Congress to decide the matter in its policy discretion (so long as it does not violate other constitutional rights), thereby giving specific content to the principle of popular consent?—?perhaps the fundamental principle of American democracy?—?that the clause adopted.

This is a serious argument (albeit I'm not convinced). To oversimplify a bit, their argument is that because the clause extends citizenship extends to those "subject to U.S. jurisdiction," Congress has some ability to define whether different classes of aliens qualify. Even assuming this argument is correct, note that Anton's argument extends far beyond what Schuck and Smith claim. Whereas Schuck and Smith claim the matter is reserved to Congress, Anton claims that the 14th Amendment actually excludes the children of unlawfully present aliens and that the President can unilaterally adopt this view.

For more on the debate about the meaning of the citizenship clause of the Fourteenth Amendment, here's a podcast debate between James Ho and the Chapman University Law Professor John Eastman.

UPDATE: Check out this Language Log post by Neal Goldfarb or a deep linguistic dive into how we should understand Sen. Jacob Howard's comments during the congressional debate over the Fourteenth Amendment. (Spoiler Alert: It doesn't help Anton's case.)