On January 20, President Trump issued an executive order concerning birthright citizenship—i.e., the matter of who becomes a United States citizen by right at birth. The first sentence of the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” In his executive order, Trump declares:
[T]he privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
He further directs officials in the executive branch not to recognize such persons as U.S. citizens if they “are born within the United States after 30 days from the date of this order.”
One week from today, on Thursday, May 15, the Supreme Court will hear oral argument on the emergency applications that the Trump administration has filed with respect to injunctions that three district courts entered against the executive order. It’s not clear at this point whether the Court intends to limit itself to the question whether the district courts improperly granted relief that extends beyond the parties to the case—the problem of so-called (but confusingly labeled) “nationwide” injunctions—or whether it will address the substantive validity of Trump’s position on birthright citizenship.
There are lots of respected scholars who have written on both sides of the constitutional question, and I will not attempt to summarize, much less assess, their views here. (John Yoo and Robert Delahunty have just published “The Originalist Case for Birthright Citizenship” in National Affairs, so that’s a good place to start for anyone who wants to see the argument against Trump’s position.)
I haven’t spent any significant time so far on the question of birthright citizenship, for at least two reasons. First, I find it bizarre that Trump’s directive applies only to persons “born within the United States after 30 days from the date of this order.” If Trump actually believes his stated position, how can he not apply it to all persons who fall within its scope, irrespective when they were born? If his position in fact captures what the Fourteenth Amendment has really meant all along, then its wholesale treatment does not present any problem of retroactive application. Trump’s failure to take his own position seriously suggests that he is just engaging in political posturing. And I wonder here, as elsewhere, whether he doesn’t mind losing so long as he can blame someone else for his loss.
Second, those who take Trump’s position generally acknowledge that they are arguing against the long-dominant understanding of the Fourteenth Amendment’s citizenship clause, an understanding derived from the Court’s 1898 ruling in United States v. Wong Kim Ark. Some argue that Wong Kim Ark was wrongly decided. Others argue that it has been read too broadly to apply to illegal aliens. But either way, if there has long been a dominant but mistaken understanding of what the Fourteenth Amendment’s citizenship clause means, why isn’t it sensible to conclude that Congress incorporated that understanding into the Nationality Act of 1940, when it declared that “A person born in the United States, and subject to the jurisdiction thereof,” shall fall within the class of “citizens of the United States at birth”? In other words, why shouldn’t the original public meaning of that provision be deemed to reflect the prevalent (supposed) misunderstanding of the Fourteenth Amendment?
At a minimum, an administration that was genuinely serious about advancing the position set forth in Trump’s should be pursuing legislation that embodies that position. The seeming impossibility of enacting such legislation any time soon is no argument against working to build the political case for it. There is very little that will be enduring that can be achieved by executive orders.