The Corner

Immigration

Can Trump End Birthright Citizenship by Executive Order?

President Donald Trump speaks at the 91st Annual Future Farmers of America Convention and Expo, in Indianapolis, In., October 27, 2018. (Al Drago/Reuters)

On substance, I believe President Trump is right on birthright citizenship — the 14th Amendment does not require it. I do not believe, however, that the president may change the interpretation of the 14th Amendment, which has been in effect for decades, by executive order, as he is reportedly contemplating.

My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “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.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.

I won’t rehash the arguments on both sides. With due respect to our friend Dan McLaughlin (see here), I think Professor Eastman has the better of the argument. As I have observed before, and as we editorialized when Donald Trump was a candidate (here), this is a very charged issue, and it is entirely foreseeable that the Supreme Court (to say nothing of the lower federal courts teeming with Obama appointees) would construe the term jurisdiction differently from what it meant when the 14th Amendment was ratified.

For today, the more narrow question is: Assuming arguendo that the 14th Amendment does not require birthright citizenship, is our practice of conferring it merely an executive policy that the president has the power to change by executive order?

I don’t think so.

Again, there are reports that the president may issue such an order. The problem as I see it is twofold. First, the legal landscape is not limited to the 14th Amendment. Congress has enacted a statute, Section 1401 of the immigration and naturalization laws (Title 8, U.S. Code). In pertinent part, it appears merely to codify in statutory law what the 14th Amendment says: included among U.S. citizens is any “person born in the United States, and subject to the jurisdiction thereof.” But that means the issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted (it has been amended several times since then).

Secondly, even assuming the meaning was the same, Congress’s codification of the 14th Amendment — which it did not need to do — is a strong expression of Congress’s intent to exercise its constitutional authority to set the terms of citizenship.

The president has extremely good lawyers in the White House Counsel’s Office and the Justice Department, and maybe they have told him that the president gets to interpret the term jurisdiction and enforce his understanding of it unless and until Congress or the courts say otherwise. To my mind, however, the president may not unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law. Presumably, if Congress did not believe conferring birthright citizenship was consistent with Section 1401, it would have amended the statute.

Moreover, it seems to me that, because Congress has weighed in on citizenship by codifying the 14th Amendment, the courts will swat down any executive order on the ground that it exceeds the president’s authority. That is, the courts will not even have to reach the merits of what jurisdiction means for purposes of the 14th Amendment and Section 1401.

We have seen something like this in an area of more certain executive power. President Bush attempted unilaterally to set up military commissions in wartime under his commander-in-chief authority. Even though there was plenty of precedent supporting this, the Supreme Court invalidated the commissions and told the president he needed Congress’s statutory blessing. (Congress later enacted the Military Commissions Act.)

Consequently, if the president actually issues an executive order changing the birthright-citizenship policy, I doubt the sun will set before an injunction is issued. I am in favor of changing the current understanding of birthright citizenship, but I believe such a change must be done by statute to have any hope of surviving court-scrutiny . . . and even then, I give it less than a 50-50 chance.

Most Popular

Politics & Policy

Five Thoughts on the George Floyd Story

After a night of riots, looting, and arson in Minneapolis to protest the police killing of George Floyd, five thoughts spring to mind: One: It is always hazardous to draw sweeping conclusions about society from individual criminal cases. Every individual case involves individual facts, and those facts often ... Read More
Politics & Policy

Five Thoughts on the George Floyd Story

After a night of riots, looting, and arson in Minneapolis to protest the police killing of George Floyd, five thoughts spring to mind: One: It is always hazardous to draw sweeping conclusions about society from individual criminal cases. Every individual case involves individual facts, and those facts often ... Read More
White House

There’s No Fix for Trump’s Bad Tweets

Whether social media have been good or bad for society is an open question. Whether social media have been good or bad for President Trump isn’t as difficult to discern. For even the most sober-minded and introspective figures, Twitter can serve as a dangerous temptation. For a man as capricious and mercurial ... Read More
White House

There’s No Fix for Trump’s Bad Tweets

Whether social media have been good or bad for society is an open question. Whether social media have been good or bad for President Trump isn’t as difficult to discern. For even the most sober-minded and introspective figures, Twitter can serve as a dangerous temptation. For a man as capricious and mercurial ... Read More
Economy & Business

Boiling Over

Andrew Ross Sorkin’s frustration over having missed so much of the post-COVID realities in markets and economic life boiled over this morning in one of the more outrageous outbursts I have ever witnessed on financial media. Perhaps this outburst was rivaled only by his behavior during the March COVID market ... Read More
Economy & Business

Boiling Over

Andrew Ross Sorkin’s frustration over having missed so much of the post-COVID realities in markets and economic life boiled over this morning in one of the more outrageous outbursts I have ever witnessed on financial media. Perhaps this outburst was rivaled only by his behavior during the March COVID market ... Read More
Economy & Business

The Spread of the Debt Virus

The current U.S. budget deficit could soon exceed a record $4 trillion. The massive borrowing is being driven both by prior budget profligacy and by a hurried effort by the Donald Trump administration to pump liquidity into a quarantined America. The shutdown has left the country on the cusp of a ... Read More
Economy & Business

The Spread of the Debt Virus

The current U.S. budget deficit could soon exceed a record $4 trillion. The massive borrowing is being driven both by prior budget profligacy and by a hurried effort by the Donald Trump administration to pump liquidity into a quarantined America. The shutdown has left the country on the cusp of a ... Read More

The Need to Discuss Black-on-Black Crime

Thomas Abt’s book Bleeding Out (2019) has garnered a fair amount of attention for its proposals to deal with gun violence in mainly black urban neighborhoods. The entire focus of the book is on interventions in high-crime locations to stem the violence, including: hot-spots policing, working with young males at ... Read More

The Need to Discuss Black-on-Black Crime

Thomas Abt’s book Bleeding Out (2019) has garnered a fair amount of attention for its proposals to deal with gun violence in mainly black urban neighborhoods. The entire focus of the book is on interventions in high-crime locations to stem the violence, including: hot-spots policing, working with young males at ... Read More