Trump Cannot Restrict Birthright Citizenship by Presidential Edict

The executive order that the president-elect plans to issue contradicts the historical understanding of the 14th Amendment.

For 126 years, U.S. courts have recognized children born in this country as American citizens. President-elect Donald Trump plans to overturn that understanding by issuing an executive order on his first day in office.

That order, Trump claims, will "end automatic citizenship for children of illegal aliens." But the president cannot do that on his own, and any such order is bound to provoke a constitutional argument that Trump cannot win.

The 14th Amendment says "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are "citizens of the United States." But "under the correct interpretation of the law," Trump argues, birthright citizenship does not apply to the children of unauthorized U.S. residents because they are not "subject to the jurisdiction" of the United States.

Trump's interpretation of that phrase contradicts the definition that the U.S. Supreme Court embraced in 1898. That case involved a Chinese cook, Wong Kim Ark, who was born and raised in San Francisco but was denied reentry when he returned to the United States after visiting China on the grounds that he was not a U.S. citizen.

Ruling in Wong's favor, the Supreme Court held that people are "subject to the jurisdiction" of the United States when they are bound to obey its laws. The majority reached that conclusion after considering British common law, colonial legislation, judicial rulings in England and America, and the debate preceding the 1868 ratification of the 14th Amendment.

Based on that history, the Court said, "children of diplomatic representatives" and "children of alien enemies in hostile occupation" are not U.S. citizens. It made an additional exception, which no longer applies, for children born to "members of the Indian tribes owing direct allegiance to their several tribes."

Otherwise, the Court said, people born in the United States automatically qualify as U.S. citizens. That principle, the justices emphasized, predated the 14th Amendment, which aimed to ensure that it applied to black people as well Americans of European descent.

"To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries," the Court noted, "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States." To avoid that implication, the German-Scottish president-elect asserts a constitutional distinction between the children of legal immigrants and "the children of illegal aliens."

That distinction is ahistorical. "Congress did not generally restrict migration until well after adoption of the Fourteenth Amendment," James Ho, whom Trump appointed to the U.S. Court of Appeals for the 5th Circuit in 2017 and considered as a potential Supreme Court nominee, noted in a 2006 law review article.

"Nothing in text or history suggests that the drafters [of the 14th Amendment] intended to draw distinctions between different categories of aliens," Ho wrote. "To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage."

Trump himself assumes that people who cross the border illegally or remain in the United States after their visas have expired are "subject to U.S. jurisdiction and laws." Otherwise, it would make no sense to describe them as "illegal aliens."

In 1982, the Supreme Court unanimously rejected the distinction that Trump perceives. As Ho noted, "all nine justices agreed" that the 14th Amendment's guarantee of equal protection, which applies to "any person within [a state's] jurisdiction," "protects legal and illegal aliens alike."

During his first term, Trump also threatened to restrict birthright citizenship by presidential edict. Tellingly, he never issued such an order.

"People born in the U.S. are citizens, regardless of the citizenship of their parents," South Texas College of Law professor Josh Blackman noted in 2018. "An executive order by President Trump cannot erase the original meaning of the Constitution."

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