It would probably take a constitutional amendment — or, at a minimum, congressional legislation.
It would probably take a constitutional amendment — or, at a minimum, congressional legislation.
I had forgotten how a whirlwind week in a Trump presidential term ages a writer like dog years. One moment, Biden is pardoning his family. The next, Trump is unilaterally decreeing an end to birthright citizenship — only to have a Reagan-appointed judge in Washington, the Honorable John Coughenour, observe: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
Is Judge Coughenour right? Probably, at least insofar as President Trump has tried unilaterally, by executive order, to change a provision of the Constitution that many solid scholars believe would require a constitutional amendment. That said, it’s complicated. That’s why I so appreciated Jim Geraghty’s excellent Morning Jolt this week on birthright citizenship and the 14th Amendment (and I commend to everyone the related discussion Jim, Charles C. W. Cooke, Noah Rothman, and Rich Lowry had on this week’s episode of The Editors).
I’ve given more thought to the topic since my 2018 piece that Jim cites — as well as to Yuval Levin’s analysis, which Jim also excerpts, and to Dan McLaughlin’s comprehensive discussions of birthright citizenship (see here and here), which persuasively urge the originalist case for it against what is claimed to be an originalist counter-case.
The upshot is that I’m more convinced than ever that a president may not end birthright citizenship by an executive order, as President Trump is trying to do. Executive orders are for organizing the executive branch and exercising authority delegated to the executive branch by Congress; EOs can legitimately neither create new legal rights nor constrict existing legal rights. The president executes the laws; he doesn’t make them. (That is why, in the podcast, Charlie was clearly correct in explaining that what matters is not the number of EOs issued but what they try to do — see our editorial on this point.)
By contrast, I am less convinced than I (tentatively) was seven years ago that Congress could define citizenship by statute in a way that would exclude persons born to aliens who are present in the United States illegally.
It does not please me to say that. As a matter of policy, I believe that aliens should be required to establish lawful permanent residency within our country before their children born here may be deemed American citizens. If we could write on tabula rasa, I would not approve of citizenship for the children of tourists or other aliens legally present on temporary visas (e.g., students and seasonal employees), much less illegal aliens.
Regarding the 14th Amendment’s reference to a person who is born in the United States “and subject to the jurisdiction thereof,” I see no contradiction in the happenstance that one can simultaneously be (a) subject to the jurisdiction of a foreign nation by virtue of his or her parents’ citizenship in that nation and (b) subject to the jurisdiction of the United States — in the sense of being required to obey our laws and benefiting from various legal protections — by virtue of his or her physical presence in the United States. When I travel as a tourist to, say, Britain, I remain an American citizen, but I must conform to British law. Nothing complicated about that. And if my U.S. citizen wife and I had had a child while we were touring in Britain, that child would be an American — logically, no one disputes that, and statutorily, it is the law (see Section 1401(c) of the immigration code).
Nevertheless, I find it difficult to read the Supreme Court’s most relevant precedent, the 1898 case of United States v. Wong Kim Ark, and avoid the conclusion that the Court interpreted the 14th Amendment to confer birthright citizenship based on both British common law and “the rule of country of birth, jus soli,” rather than “the rule of descent or blood, jus sanguinis.” Here, I am quoting from the Court’s observation that, in the 1807 Code of Napoleon, France altered the long-understood concept of jus soli, to which England and Europe broadly adhered.
That is to say: Jus soli was the assumed rule, and jus sanguinis was the exception that some countries adopted by constitution.
If the original meaning of the 14th Amendment citizenship clause embraced birthright citizenship — and that is the big if — then Congress could not legitimately change that meaning by statute. This is not to say that Congress’s enactments are unimportant. As I argued in 2018, the Court might pay them deference, particularly if the justices conclude that the meaning of “subject to the jurisdiction thereof” is not free from doubt and that the Constitution left it to Congress to resolve that question. I’m just not as confident that (a) Wong Kim Ark leaves much doubt or (b) that, if the current Supreme Court were to revisit Wong Kim Ark, it would come to a different conclusion.
(Aside: In contrast to some commentators, I am not persuaded that Wong Kim Ark is bolstered by the Court’s 5–4 decision in Plyler v. Doe [1982]. That case held, wrongly in my view, that the equal protection clause barred Texas from denying education funding to the children of illegal aliens, with the narrow majority reasoning that those children were, in 14th Amendment terms, persons within the jurisdiction of the United States. Even assuming for argument’s sake that the majority was right about what persons means in this context, equal protection principles do not require the same treatment for persons who may properly be categorized differently — e.g., because some are citizens and legally present in the United States, while others are noncitizens and illegally present.)
Finally, I want to address a point that Ramesh Ponnuru made about birthright citizenship (in a piece also quoted in Jim’s post): People who want to end the practice “generally oppose it not because it makes legal immigrants’ children citizens, but because it makes illegal immigrants’ children citizens too.” This is exactly right. It also highlights what I find to be a maddeningly elusive aspect of the Wong Kim Ark case: the status of Wong’s parents.
In discussing that case with supporters of the policy I prefer (again, something more like jus sanguinis), the point they stress is that Wong’s parents were lawfully present in the United States and, therefore, the ruling should not be extended to the parents of illegal aliens. Alas, there are two problems with this argument.
First, under the common law principles that the Court addressed, birthright citizenship was established for the children of foreigners born on American soil, subject to just two exceptions: (1) children of foreign diplomats, who were deemed to retain and thus confer on their children allegiance to their sovereign, and (2) children of alien enemies born during those enemies’ hostile occupation of the king’s dominions. (I use the word foreigners advisedly; I am not getting into the exception of what the Court described as the “children of members of Indian tribes.” That’s an interesting topic, but it does not involve foreigners who’ve entered the United States from other countries; rather, it concerns indigenous peoples whose citizenship issues have a fraught, inapposite history.)
Much as I would like to analogize children born of illegal aliens to category 2, on the theory that their presence in our country in violation of our laws is a hostile act, I can’t in good conscience do that. Simply stated, there are salient differences between a hostile occupation by an alien enemy force and an illegal trespass by aliens who should not be here but are not contesting American sovereignty.
Second, comparing the immigration status of Wong Kim Ark’s parents in the late 19th century with today’s immigration system is comparing apples and oranges.
When Wong Kim Ark was born, in 1873, there were no green cards. Prior to the Chinese Exclusion Act of 1882, it was common for Chinese nationals to immigrate and establish employment without severe restrictions. This is why the Wong Kim Ark Court observes that the parents, though “subjects of the Emperor of China,” were “domiciled residents at San Francisco” who had “established and enjoyed a permanent domicil and residence” before returning to China in 1890. They engaged in business while in California, but what was relevant to the Court was not that the business was legal but that it was not a diplomatic or other official post under the emperor of China — i.e., they and Wong were not in what I described as category 1 above.
Aliens were not required to register in the United States and carry proof of legal presence until 1940. This was the Form I-151, the Alien Registration Receipt Card — later popularly known as the “green card.” But it wasn’t until the enactment of the 1952 Immigration and Nationality Act that the government began to distinguish in a formal way between aliens present in the U.S. on temporary visas and aliens intent on residing here permanently. It was over time, then, that the green card came to distinguish “lawful permanent resident aliens” from immigrants present temporarily.
To assert that the parents of Wong Kim Ark were lawfully present in the United States when their son was born, in 1873, does not mean the same thing that lawful presence means in today’s far more regulated immigration system. And, again, I don’t think it’s accurate to say that the Wong Kim Ark decision turned on this distinction; it turned on the Court’s application mostly of common law and its assessment of some developments in foreign law.
If I am right about this, then it would probably take a constitutional amendment to end birthright citizenship. At a minimum, it would take congressional legislation and, when that action was inevitably challenged, a Supreme Court willing to reverse (or at least significantly revise) Wong Kim Ark. I do not believe a majority of the justices on the current Court would do that. In any event, birthright citizenship will not be repealed by President Trump’s executive order.