Debating Birthright Citizenship (Again)

The arguments are not new. The willingness of an Administration to act on them are.

During the first Trump Administration, some of the President's supporters urged him to embrace the view that the Fourteenth Amendment does not require recognition of birthright citizenship to those born in the United States to parents who were not legal residents.

As I noted at the time, some of the most thorough and comprehensive arguments to the contrary could be found in the work of Judge James Ho, who wrote several op-eds and a short law review article on the question before becoming a judge on the U.S. Court of Appeals for the Fifth Circuit.

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 . . ." This provision unquestionably provides that those born on U.S. soil to American citizens and lawful permanent residents are American citizens at birth. The relevant legal question with regard to the Trump Administration Executive Order is what it means for someone to not be "subject to the jurisdiction" of the United States at birth. The conventional account is that it excludes the children of foreign diplomats and invading armies. The revisionist account maintains that it also excludes the children of those unlawfully present in the country, and perhaps the children of non-citizen parents lacking lawful permanent residence as well.

There may well be a range of non-originalist arguments for the revisionist position, but as a matter of original public meaning, these arguments do not work.   Judge Ho explained why in a 2007 op-ed:

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.

The strongest counter-argument I have come across is that made by Peter Schuck and Rogers Smith (based on their 1985 book), but their argument does not vindicate the Trump Administration's position. Rather, their position is that Congress has "the power to regulate access to birthright citizenship for groups to whose presence or membership it did not consent" by defining what constitutes being "subject to the jurisdiction of the United States." And if one takes an expensive view of Congress's Section 5 power to implement and enforce the terms of the Fourteenth Amendment, this argument may have some force. But even if one accepts this argument (and I am unpersuaded), this would at most allow for Congress to enact legislation excluding some groups, such as those unlawfully present in the country, from conveying birthright citizenship. It would not provide adequate justification for unilateral action by the executive branch.

The above assumes that the question of birthright citizenship should be resolved by reference to the original public meaning of the Fourteenth Amendment. If one rejects this view, and believes either that courts should be particularly deferential to the political  branches or should embrace evolving constitutional meanings in response to political and other developments (such as an election in which a prevailing candidate advocated a contrasting constitutional interpretation), one might well reach a different conclusion.