President Trump's Executive Order on Birthright Citizenship is Unconstitutional

Trump is doing many great things but trying to get rid of birthright citizenship is not one of them

Section 1 of the 14th Amendment says that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Trump's defenders argue that children born of illegal immigrants in the United States have never entered into a social compact that makes them citizens of the United States protected by U.S. law.

Samarth Desai, a second year law student at Yale Law School, has a devastating response to this claim, which was recently argued for by Georgetown Law Professor Randy Barnett and University of Minnesota Law Professor Ilan Wurman in an op-ed in the New York Times. Desai's article, with which I totally agree, appears below.

Birthright Citizenship: A Test Case

Samarth Desai

President Trump's birthright-citizenship executive order is illegal and unconstitutional, and no "allegiance-for-protection theory" can save it.

No one doubts that children born on American soil to unauthorized migrants were "born … in the United States." So if these children are not birthright citizens, it must be because they were not "born … subject to the jurisdiction" of the United States despite being born under the American flag.

Two prominent scholars claim, in the New York Times and elsewhere, that the children of unauthorized migrants were not born "subject to the jurisdiction" of the United States because their parents disobeyed the laws by entering illegally. According to these scholars, (1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child. Unauthorized migrants "gave no obedience or allegiance to the country when they entered," these scholars say. "[T]hey and their children are therefore not under the protection or 'subject to the jurisdiction' of the nation."

This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children.

If Professors Barnett and Wurman are right, then Confederate rebels and their children would also not have been "subject to the jurisdiction" of the United States, and it would have been perfectly constitutional to deny or revoke their birthright citizenship. Confederate rebels were, after all, paradigmatically disobedient. In the words of the Prize Cases (1863), they had "declared their independence," "cast off their allegiance," "organized armies," and "commenced hostilities" against the United States. True, Confederate rebels, unlike unauthorized migrants, were at one point citizens, but this distinction is irrelevant if jurisdiction requires the existence of a social compact conditioned on obedience to the laws.

The Barnett-Wurman theory fails this easy test case. In 1867, the Fourteenth Amendment's framers—John Bingham among them—were emphatic that Confederate rebels remained "allegiant" and therefore "subject to the jurisdiction" of the United States despite having flagrantly and treasonously disobeyed the laws. In doing so, they expressly repudiated the allegiance-as-obedience theory; obedience was a duty of citizenship, not a condition. And whatever the sins of the fathers, absolutely no one (as far as I can tell) suggested that the children of Confederate rebels could be stripped of their birthright citizenship because of what their parents had done.

Confederate Rebels

The impetus for this key 1867 episode, almost entirely ignored until now, was an effort to suspend the citizenship of a wide swath of former Confederate rebels. Language proposed by Thaddeus Stevens provided

[t]hat all persons who, on [March 4, 1861], were of full age, and who at any time held office, either civil or military, under the government called the "Confederate States of America," or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced allegiance to the United States ….

Ohio's John Bingham declared the bill containing this provision "a clear, palpable departure from the intent and letter of your constitutional amendment"—that is, the Fourteenth Amendment, which Congress had proposed to the states just six months earlier and of which Bingham had been one of the principal authors. "[T]he Congress of the United States has no color of authority for providing by law," he explained, "that a million persons, natural-born male citizens of this Republic and resident therein, are no longer citizens of the United States."

But what about jurisdiction, allegiance, and obedience? Tennessee's Horace Maynard asked just that: "I would ask the gentleman if he recognizes the right of citizens of this Government to throw off their allegiance?" "Not at all, while they remain within its jurisdiction," Bingham replied. "[T]heir treason and revolt does not make them a foreign nationality, nor put them or the States in which they reside beyond the jurisdiction of the United States, nor absolve them from their allegiance to this Government, nor make the faithful, law-abiding citizens of their States alien enemies and traitors."

Contrary to Professors Barnett and Wurman, it did not matter that Confederate rebels had disobeyed the laws, that they had engaged in "treason and revolt." They were still subject to "the jurisdiction of the United States." Their acts did not "absolve them from their allegiance to this Government." Nor could the rebels' acts be imputed to "the faithful, law-abiding citizens of their States." All born on American soil and under the American flag were "natural-born … citizens." End of story.

Illinois's Jehu Baker echoed Bingham. Twice quoting the words of the Citizenship Clause, Baker insisted that "the terms of that amendment cover those persons who have engaged in armed revolt against the United States." Confederate rebels "were born in the United States; they are subject to the jurisdiction of the United States; and it results by force of the first article of the proposed amendment that they are citizens of the United States." Like Bingham, Baker denied that disobedience of the laws rendered a citizen nonallegiant: "[T]hey have not by their act of rebellion absolved themselves from allegiance to the supreme sovereignty of the Republic."

There's more:

• If the Fourteenth Amendment were already to have been ratified, "this bill would be in plain and direct violation of that amendment itself," Kentucky's Lawrence Trimble avowed, "because that amendment declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.'"
• "I contend, Mr. Speaker, that no rebellious act on the part of the rebels could dissolve their allegiance to the Government of the United States," Pennsylvania's George Miller maintained, "and consequently they are amenable to its laws."
• "How, then, can Congress make aliens of native-born citizens?" Kentucky's Andrew Ward asked in disbelief. "[I]f their citizens are not citizens of the United States I would be obliged to the author of this bill if he will tell me of what country they are citizens?" (Bingham would ask the same question later that year: "If a man is not a citizen of the country in which he was born, in God's name of what country is he a citizen?")

To be sure, some members of Congress did subscribe to the allegiance-as-obedience theory. In words that Professors Barnett and Wurman could have written, Indiana's George Julian argued: "The citizen's duty of allegiance and the nation's obligation of protection are reciprocal. The one is the price of the other, and the compact is alike binding upon both parties. When the rebels broke this compact by attempting the crime of national murder their right of citizenship was forfeited, and the nation has the undoubted right to declare the consequences of that forfeiture by law." Ohio's Samuel Shellabarger similarly called attention to the "contract" citizens make with their nations.

The problem is that this minority view—the view that disobedience precluded allegiance and therefore jurisdiction—lost in the fair and open field of debate. After almost two weeks of discussion, Bingham once more reminded his colleagues that the bill "recede[d] from the principles of the pending constitutional amendment." A majority that included Bingham then voted to kill the bill containing the problematic provision.[1] That provision would never again see the light of day, and no similar language claiming that Confederate rebels had "forfeited their citizenship" and "renounced allegiance to the United States" would appear in any of the Reconstruction Acts. The provision had been widely reprinted in newspapers across the land, as had some of the speeches opposing it on constitutional grounds. Informed ratifiers would thus have been well aware of the provision's death and the debates leading up to it.

Children

All that debate was about the parents—to say nothing about the children. Throughout the entire episode, not even the provision's defenders ever seem to have broached the possibility of denying birthright citizenship to children who had been born to Confederate rebels during the war.

This should not surprise us. Imputing the acts of parents to their children and denying them citizenship on that basis would have "work[ed] Corruption of Blood" in violation of the spirit of Art. III, sec. 3, cl. 2, and debased the core birth-equality principles of the then-pending Fourteenth Amendment. It also would have transgressed basic principles of humanity—Lincolnian humanity—of "malice toward none" and "charity for all," none more than the "orphan." That March, Bingham backed a joint resolution providing for relief to destitute Southerners. His words are instructive:

The unoffending little children are not enemies of your country or of mine; the crime of treason is not upon their souls. Surely, surely they are not to be denied your care…. "Little children at least are innocent, for God wills it so." … Do not, then, I pray you, ask that this Government shall degrade itself in the presence of the civilized world by refusing supplies to its own citizens who are famishing for bread ….

Professors Barnett and Wurman's argument has other problems, too:

1. It treats the Trump executive order's denial of birthright citizenship to the children of "lawful but temporary" migrants—migrants invited to America, like students on student visas and workers on temporary-worker visas—as "a more complicated question not addressed here." But that part of the order is clearly illegal even on Professor Barnett and Wurman's own terms, since lawful migrants entered the United States in obedience to its laws.
2. It confuses the sufficient with the necessary in treating the citizenship "status of children born to citizens residing within enemy-occupied territory" as supposedly "anomal[ous]" under the dominant view of birthright citizenship. The Citizenship Clause defines what is sufficient for American citizenship, not what is necessary. Nothing prevents grants of citizenship above and beyond constitutional birthright citizenship. (That is why Ted Cruz could run for president in 2016.)
3. Similarly, it mistakenly treats as supposedly anomalous the noncitizenship "status of children born to foreigners on foreign public vessels in U.S. waters." Foreign public vessels flew foreign flags, not American flags, which is why "foreign public ships" was one of the four exceptions listed in Wong Kim Ark (1898).
4. Speaking of Wong Kim Ark, it reads that case too narrowly. The language of Wong Kim Ark is utterly clear: children born on American soil and under the American flag are birthright citizens "with the exceptions or qualifications (as old as the rule itself) of [1] children of foreign sovereigns or their ministers, [2] or born on foreign public ships, [3] or of enemies within and during a hostile occupation of part of our territory, and [4] with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." Yes, Wong Kim Ark's facts involved parents with a "permanent domicile and residence in the United States," but the decision never suggested that its reasoning was in any way limited to the children of such parents. (Wong Kim Ark, which glossed the Citizenship Clause, in turn served as the backdrop for two congressional immigration statutes enacted in 1940 and 1952.)
5. It does not sufficiently explain the birthright-citizenship status of the children of antebellum slaves illegally smuggled into the United States in violation of laws banning the transatlantic slave trade, slaves who had not entered into a social compact with the United States either at the time of their birth or at the time of their coerced migration.

But most of all, the allegiance-as-obedience theory collides with the considered judgment of John Bingham and other framers, publicly articulated in 1867 in the very moment that the states were ratifying the Fourteenth Amendment. If Confederate rebels who took up arms against the United States nevertheless owed it allegiance and were subject to its jurisdiction, then of course unauthorized migrants, lawbreakers though they were, are subject to U.S. jurisdiction on U.S. land. And if even Confederate rebels could not constitutionally be stripped of their birthright citizenship, then the legal case for denying birthright citizenship to legally innocent children born on American soil and under the American flag is feeble indeed.

[1] More precisely, they voted to refer the bill to committee. But as Stevens complained, and as all understood, "the reference of the bill to that committee is the death of the measure."