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Birthright Citizenship and the Constitution

Why Trump cannot eliminate birthright citizenship for children of undocumented immigrants by executive order.

|The Volokh Conspiracy |

In a recent interview, President Donald Trump claimed that he can issue an executive order to end birthright citizenship for children of undocumented immigrants born in the United States. The proposed order might also prevent US-born children of foreigners here on temporary visas from getting citizenship. Can Trump legally do that? The short answer is no. The Fourteenth Amendment gives birthright citizenship to children of undocumented immigrants and visa holders, if they are born on US soil. Even if that were not the case, the power to grant citizenship is a congressional power, not an executive one. I have some reservations about the morality and policy of birthright citizenship. But the constitutional issue is clear: Trump does not have the power to end birthright citizenship at all, and certainly not by an executive order issued without congressional authorization.

Prominent originalist legal scholar Michael Ramsey summarized the issue well in a 2015 post:

The first sentence of the Fourteenth Amendment conveys U.S. citizenship on all persons "born … in the United States and subject to the jurisdiction thereof." Obviously we are talking here about persons "born … in the United States." Thus the children of illegal aliens are not U.S. citizens only if they are not "subject to the jurisdiction" of the United States.

But there is no sense in which children of illegal aliens are not "subject to the jurisdiction" of the United States. So long as they remain in the United States, they are subject to U.S. law. If they violate U.S. law, they can be arrested by U.S. law enforcement, brought before a U.S. court, and sentenced to U.S. prison.

As Ramsey describes, undocumented immigrants differ from foreign diplomats (and their families), who are largely exempt from US law. The same point applies to soldiers of invading armies, and (as Ramsey points out), possibly some members of Indian tribes who are under the jurisdiction of tribal governments traditionally exempt from most US laws (though Congress has given such Indians birthright citizenship by statute).

There is a broad, though not quite universal, consensus among experts that the Fourteenth Amendment extends birthright citizenship to children of undocumented aliens and other foreigners present in the United States, with the exception of diplomats and a few others who are not subject to US law. That agreement includes both liberal living constitutionalists (such as Michael Dorf), and conservative originalists such as Ramsey, John Yoo, and James Ho (a well-known conservative lawyer whom Trump appointed to the US Court of Appeals for the Fifth Circuit).

The expert near-consensus on this subject is backed by longstanding Supreme Court precedent, going back to United States v. Wong Kim Ark (1898). James Ho's article on this subject includes an excellent discussion of Wong Kim Ark and other relevant precedent. As the Court explained in Wong Kim Ark:

The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications… of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

While Wong Kim Ark involved legal immigrants, the logic of the Court's holding is not limited to that scenario. It applies to children of undocumented immigrants, as well, and indeed to all children born on US soil, other than those of foreign diplomats, soldiers of invading armies, and (at the time) certain members of Indian tribes. As Ho describes, the Court's ruling in that case was backed by the original understanding of the Fourteenth Amendment. For example, Senator Jacob Howard, one of the key drafters of the amendment, stated that eligibility for birthright citizenship "will not, of course, include [children of] persons in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons" (emphasis added).

A few dissenting scholars, such as John Eastman, argue that birthright citizenship only applies to children of persons within the "complete" jurisdiction of the United States, which they claim applies only to those who not only are subject to American law, but also have rights and duties of citizenship, such as the right to vote and being subject to jury duty. I responded to such claims here:

[U]ltimately, [Eastman's] argument fails because it relies on a dubious distinction between "complete, political jurisdiction; and… partial, territorial jurisdiction." Eastman explains that a person subject only to the latter "does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance…."

One obvious problem with this distinction is that it is nowhere to be found in the text of the Fourteenth Amendment, which simply refers to "the jurisdiction" of the United States. This language encompasses all forms of jurisdiction, not merely that which applies only to citizens subject to "complete political" jurisdiction. The framers could have used the phrase "complete political jurisdiction" (or similar language), but did not. Another problem with the complete jurisdiction theory is that it would enable Congress to deny citizenship even to children of legal immigrants who are not yet citizens themselves. After all, they too do not get to vote or serve on juries, and some of them might not be subject to a military draft if we had one.

But perhaps the most important flaw in this argument is that it would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment, which was to reverse the Dred Scott decision's notorious holding that blacks – even those who were not slaves – could not be citizens of the United States. In his infamous opinion in Dred Scott, Chief Justice Roger Taney concluded that blacks could not be citizens in part precisely because of the sorts of distinctions Eastman relies on. As Taney pointed out, in most states free blacks could not vote, could not serve on juries, and were barred from serving in the militia (including under the 1792 federal Militia Act, which limited militia service to white men). While Taney did not deny that free blacks were subject to what Eastman calls "territorial jurisdiction," most were not subject to what he calls "political jurisdiction." If Eastman's analysis is correct, Congress….. could have prevented newly freed slaves and their children from becoming citizens simply by declaring that they were not entitled to vote, could not serve on juries, and so on.

The argument that children of undocumented immigrants and temporary visa holders are not within the "jurisdiction" of the US because their parents do not owe exclusive "allegiance" to the United States has similar flaws. Among other things, it too would deny birthright citizenship even to children of legal immigrants who have permanent resident status in the US, since such individuals still legally owe "allegiance" to a foreign government so long as they remain citizens of that nation. Jim Ho addresses this issue in greater detail.

Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order. The Naturalization Clause of Article I of the Constitution gives Congress, not the president, the power to "establish an uniform Rule of Naturalization." And, when it comes to children of aliens born on US soil, Congress has in fact exercised that power. A federal statute, 8 U.S.C. Section 1401, extends birthright citizenship to any "person born in the United States, and subject to the jurisdiction thereof." For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.

Unlike most other advocates of immigration and immigrant rights, I have significant reservations about birthright citizenship. In my view, important human rights should not be so heavily dependent on parentage and place of birth. Our current citizenship system has all too much in common with medieval hereditary aristocracy, under which freedom of movement and other crucial rights were largely dependent on ancestry. I cannot outline anything like a comprehensive alternative here. But, as a general rule, I would prefer a system under which which some rights now largely determined by citizenship (particularly freedom of movement, residency, and employment) were delinked from citizenship and made presumptively available to everyone, and citizenship itself were made easier to acquire through pathways that do not require the applicant to be a relative of a current citizen.

Trump's proposed policies, however, would not liberalize the hereditary aristocracy of citizenship. Quite the opposite, in fact. His plans to massively cut legal immigration and restrict birthright citizenship to a narrower class of children, are efforts to make the system more exclusionary, not less so. If implemented, his approach would simultaneously reduce the class of people eligible for hereditary citizenship and make it much harder to acquire the rights associated with citizenship by means other than birth. The end result would be not liberalization, but a smaller and more exclusive aristocracy.

Be that as it may, Trump's plan to curb birthright citizenship by executive order is unconstitutional, regardless of the moral aspects of the issue. If he tries to pursue the idea, it should be struck down by the courts.

UPDATE: Reason's Damon Root has a helpful post on the original meaning of the Citizenship Clause of the Fourteenth Amendment here.

UPDATE #2: I wrote this post before seeing co-blogger Eugene Volokh's post referencing James Ho's work. I also recommend this critique of Trump's proposal by Georgetown law professor Neal Katyal and prominent conservative lawyer George Conway.

UPDATE #3: I have slightly expanded the discussion of the Wong Kim Ark case in the post.