Trump's Citizenship Decree Signals His Willingness To Flout the Constitution
The executive order contradicts the 14th Amendment and 127 years of judicial precedent.
In practical terms, Donald Trump's attempt to nullify birthright citizenship by executive decree, which ran into immediate legal trouble last week, is probably the least significant element of his immigration crackdown. But it is telling as an indication of the president's willingness to disregard the law in pursuit of his agenda.
Under the 14th Amendment, "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are "citizens of the United States." But under an executive order that Trump issued on his first day in office, that status would be limited to the children of citizens or legal permanent residents.
The order notes that the 14th Amendment "has never been interpreted to extend citizenship universally to everyone born within the United States." But according to an 1898 Supreme Court decision, there are just two exceptions that remain legally relevant: children of foreign diplomats and "children born of alien enemies in hostile occupation."
Because they enjoy diplomatic immunity, representatives of foreign governments are not "subject to the jurisdiction" of the United States. Invading soldiers likewise are neither inclined nor expected to abide by U.S. law, the obligation that the Court saw as the essence of national jurisdiction based on British common law, colonial legislation, judicial rulings in England and America, and the debate preceding the 1868 ratification of the 14th Amendment.
Those two exceptions, the Court said, had deep roots in that history. It also recognized a third exception, for "members of the Indian tribes owing direct allegiance to their several tribes," that no longer applies.
"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," the Court said. "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."
Although a lawyer defending Trump's executive order dismissed that clear statement as "broadly worded dicta," the Supreme Court has repeatedly reaffirmed this understanding of jurisdiction and citizenship. In 1939, for example, the Court noted that "a child born here of alien parentage becomes a citizen of the United States."
In a 1982 equal protection case, the Court said "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." Three years later, it acknowledged that the child of two unauthorized immigrants "was a citizen of this country" by virtue of being "born in the United States."
Given these precedents, the dismay expressed by the federal judge who issued a temporary restraining order against Trump's edict is understandable. "I can't remember another case where the question presented [was] as clear as this one is," said U.S. District Judge John Coughenour, who was appointed by Ronald Reagan in 1981. "This is a blatantly unconstitutional order."
Conservatives such as James Ho, whom Trump appointed to a federal appeals court and considered as a Supreme Court nominee, and law professor John Yoo, usually a staunch defender of executive power, likewise have recognized that the president cannot do what he is trying to do. Why bother then?
Even if it were allowed to take effect, Trump's order would have a gradual, forward-looking effect, applying only to children born on or after February 19. It would be far less immediately consequential than his other immigration initiatives, such as mass deportation of unauthorized residents and changes in asylum and refugee policy, all of which have a sounder legal basis.
Trump's citizenship order is best understood as a symbolic stand against the "invasion" he perceives when people enter this country in pursuit of better lives. But his casual disregard for the Constitution sends another message, one that should make Americans grateful for the restraining influence of an independent judiciary.
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