Two Injunctions Against Trump's Citizenship Decree Expose the Weakness of His Arguments
Federal judges in Washington and Maryland say the president's attack on birthright citizenship flouts the 14th Amendment and 127 years of judicial precedent.
On his first day in office, President Donald Trump issued an executive order that purported to qualify birthright citizenship by limiting it to the children of citizens or lawful permanent residents. That decree, which contradicted the text of the 14th Amendment and 127 years of judicial precedent, ran into legal trouble three days later, when John Coughenour, a federal judge in Washington, blocked it with a temporary restraining order. It hit two more roadblocks this week.
On Wednesday, Deborah Boardman, a federal judge in Maryland, issued a preliminary injunction against Trump's order. The next day, so did Coughenour. Although Boardman was appointed by a Democrat (Joe Biden) and Coughenour by a Republican (Ronald Reagan), their reasoning is essentially the same, and it underlines the weakness of the legal arguments that Trump has deployed in defense of his attempt to restrict birthright citizenship by executive fiat.
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." Trump argues that children of unauthorized residents or legal but temporary visitors are not subject to U.S. jurisdiction because their parents are not "domiciled" in the United States and owe "allegiance" to foreign governments.
The first difficulty with that argument is it has no basis in the text of the 14th Amendment. "In interpreting the text of the Constitution," Coughenour notes, quoting the Supreme Court's 2008 ruling in District of Columbia v. Heller, courts are "guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'"
The Trump administration "insinuates that 'subject to the jurisdiction' conditions citizenship upon the exclusive jurisdiction of the United States," Coughenour writes. "But the text of the phrase requires no such exclusivity; it requires only that the person born in the United States be subject to it."
The government "also contends that whether a person born in the territorial United States is 'subject to its jurisdiction' ultimately turns on the legal status of the person's parents and their allegiance to and domicile in this country," Coughenour notes. "But the words 'allegiance' and 'domicile' do not appear in the Citizenship Clause, or anywhere in the Fourteenth Amendment, and nowhere in the text does it refer to a person's parentage."
The clause "merely refers to 'jurisdiction,' and the word 'jurisdiction' is commonly understood in this context to be 'a geographic area within which political or judicial authority may be exercised,'" Coughenour says, quoting Black's Law Dictionary. "Thus,
anyone who answers to the political or judicial authority of the United States is 'subject to [its] jurisdiction.' That is the plain meaning of the phrase 'subject to the jurisdiction,' and it unequivocally applies to children born in the territorial United States—regardless of the immigration status of their parents."
The second problem for Trump is that the Supreme Court definitively resolved the question of what "subject to the jurisdiction" means in the 1898 case United States v. Wong Ark Kim, which involved a man who was born in San Francisco to Chinese parents who were not U.S. citizens but were living in the city at the time. When he returned to the United States after visiting China, he was denied reentry under the Chinese Exclusion Act on the grounds that he was not a citizen.
"The question presented by the record," the Court said, "is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment." The answer was yes.
Under British common law, the Court noted, "aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador, or of an alien enemy in a hostile occupation of the place where the child was born." That principle, the majority said, carried over to America, as reflected in colonial legislation, early judicial rulings, and the debate preceding the 1868 ratification of the 14th Amendment.
In addition to the longstanding exceptions for children of diplomats and foreign invaders, the Court recognized a third exception in the American context: Like those two categories, "members of the Indian tribes owing direct allegiance to their several tribes" were not subject to U.S. "jurisdiction" within the meaning of the 14th Amendment. Apart from those three exceptions, the Court ruled, anyone born in the United States automatically became a U.S. citizen.
"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."
The Trump administration "does not dispute that Wong Kim Ark is binding precedent," Boardman notes. "Nor does it argue that Wong Kim Ark was wrongly decided or should be overturned. Instead, the government claims that, under Wong Kim Ark, to be 'subject to the jurisdiction' of the United States, a person's parents must, at the time of the person's birth, be lawfully domiciled in the United States, and bear '"direct and immediate allegiance" to this country, unqualified by an allegiance to any other foreign power.' Nothing in Wong Kim Ark remotely supports the government's narrow reading of the decision." Under that precedent, "if a person is born in the United States and does not belong to one of the traditional classes of excepted persons, the person is born 'within the allegiance' of the United States and 'subject to the jurisdiction' of the United States."
Boardman also cites a long line of subsequent cases in which the Supreme Court took it for granted that children born in the United States thereby became U.S. citizens, even if their parents had entered the country illegally or had overstayed their visas. In the 127 years since Wong Ark Kim, she notes, "the Supreme Court has never questioned whether a child born in the United States" whose "parents did not have lawful status or were in the country temporarily" was nevertheless "an American citizen." She says "the government's only response to these Supreme Court cases" is its observation that "it is not unusual for the Supreme Court, after fully exploring a legal issue, to reach a conclusion that conflicts with earlier assumptions." As she notes, "That is no response at all."
Trump's position "is unavailing and untenable," Coughenour says. "It does not have the text or precedent to support its interpretation of the Citizenship Clause. And it rehashes losing arguments from over a century ago. Moreover, subsequent precedents have affirmed the exceptionally American grant of citizenship as birthright." Boardman likewise concludes that Trump's order "flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our nation's 250-year history of citizenship by birth."
