One of Trump’s most controversial executive orders is his order regarding birthright citizenship. The order would basically limit citizenship (going forward) to children with at least one citizen or permanent resident parent. Children whose parents are illegal immigrants and/or temporary visitors (such as tourists) wouldn’t get automatic citizenship.
Obviously, this is a very controversial executive order. But is it constitutional?
The 14th Amendment states that ”[a]ll 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.” There are thus two conditions listed in the clause:
- Born or naturalized in the United States
- Subject to the jurisdiction thereof
The first one is pretty simple: if you were born in the US (or naturalized, but we can leave that out since any who went through the naturalization process Is clearly a citizen), you meet the condition. But what about the second condition?
It’s a principle of US law (and Jewish law!) that there are no unnecessary words in the law. So, for example, in the commandment in the Torah that “justice, justice shall you pursue”, the repetition of the word “justice” has to have a meaning. So, too, must “subject to the jurisdiction thereof”. Why else would it be in the 14th Amendment?
The standard assumption is that “subject to the jurisdiction thereof” means that the children of foreign diplomats wouldn’t be citizens. The problem is that, in 1868, the children of foreign diplomats would have been born at the foreign embassy, which was already not considered US soil (and still isn’t). That would make the wording redundant, since children of diplomats wouldn’t be born in the United States. So whom else could it refer to?
It‘s helpful to refer to the Congressional Record from the time when the Amendment was first drafted to understand what the drafters meant. In this case, it’s clear that the drafters wanted to codify the 1866 Civil Rights Act, which granted citizenship to slaves, into the Constitution so it couldn’t be later reversed by Congress. The drafters were clear that the Amendment applied to people whose sole allegiance was to the United States and not to a foreign power. In other words, if you were simply a visitor the the US and had a child here, that child wouldn’t be a citizen under the 14th Amendment. So birth tourism shouldn’t be a way to give birth to a US citizen.
The more complex issue is whether a child whose parents are both here illegally can be a citizen by birth. Most people cite the 1898 Wong Kim Ark Supreme Court case, which says:
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are “subject to the jurisdiction thereof,” in the same sense as all other aliens residing in the United States.
This is an interesting case because, while the Chinese Exclusion Act made it illegal for Chinese nationals to immigrate to the US at the time of the case, the subject’s parents were both in the US legally at the time of his birth, as both sides agreed at the time. In fact, this was Ark’s second trip to (and return from) China; he had no difficulty reentering the US on his first trip. The point the Court made was that, because Ark was born to parents legally resident at the time of his birth, he was a citizen. Note that the ruling explicitly states that the Citizenship Clause applies “so long as they are permitted by the United States to reside here”. Later passage of a law that might have excluded him or his parents from legal residency is irrelevant to the situation.
But, by the ruling in Ark itself, the parents‘ status at the time of the birth is very relevant. The parents must be “permitted by the United States to reside here”. There are two key terms: “permitted” and “reside”. Illegal immigrants fall short of the first term: they’re residents but aren’t permitted to reside in the United States. Tourists and other short-term visa holders fall short of the second term: they’re legally permitted to be here, but do not reside here.
It’s worth noting that the 14th Amendment sets minimums for who is a citizen, but doesn’t prevent Congress from writing law to broaden the definition. Nothing stops Congress from passing a law saying that (for example) children born to foreign nationals on an F-1 (student) or H1-B (employee) visa are citizens. Such a law would be clearly Constitutional even if the Supreme Court found that children of foreigners on a temporary visa weren’t citizens by birthright. Rather, the 14th Amendment prevents Congress from writing law that denies citizenship to a child of legal permanent residents, thus preventing the formation of a non-citizen underclass of legal permanent residents.
As further evidence, consider that Native Americans were not granted citizenship by the 14th Amendment, which was ratified in 1868. To rectify this, Congress passed the 1924 Indian Citizenship Act, which gave citizenship to Native Americans born on US reservations. Such a law was necessary because Native Americans didn’t satisfy the ”under the jurisdiction“ condition, given their allegiance to semi-autonomous tribal governments. Those same principles apply today to illegal immigrants and temporary visitors to the US.
Interestingly, there has been minimal litigation over citizenship rules over the past century. One potential reason for this is the lack of standing for anyone to challenge an interpretation that‘s too broad: what individual is harmed by an over-broad granting of birthright citizenship? With the recent Trump executive order, however, there will certainly be litigation on behalf of people whose children no longer qualify for birthright citizenship. Such a case will clarify the interpretation of the 14th Amendment‘s “subject to the jurisdiction” condition.
The United States is, perhaps uniquely in the world, a country of immigrants. Anyone can become an American citizen, but doing so requires following the country’s rules to become a permanent resident. Awarding citizenship to the children of those who violate those rules fundamentally goes against the American spirit. The Trump executive order provides a pathway to determine how our country will treat those who attempt to subvert the rule of law to gain citizenship here.