Good Policy, Bad Process
Trump may be right to want to limit birthright citizenship, but he's going about it completely wrong.
The Trump administration wants to narrow birthright citizenship. Some illegal immigrants have used this right as a shortcut to stay in America by giving birth on U.S. soil, granting citizenship to their children. As sleazy as this practice may be, Trump’s executive order countering it runs afoul of the 14th Amendment and Supreme Court precedent. The nation’s highest court has considered examining the order’s constitutionality, and it ought to overturn the EO.
Trump issued the legally dubious order on his first day in office. The EO, in the name of “protecting the meaning and value of American citizenship,” would deny citizenship to a child born in the U.S. in two instances:
“(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 … and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
The courts quickly halted the implementation of the order. On January 23, Judge John Coughenour, a Reagan appointee to the Western District of Washington, issued a temporary restraining order on Trump’s EO before imposing a preliminary injunction on February 6.
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order,” Coughenour said when he first halted the EO.
Another judge, the Biden-appointed Deborah Boardman to the District of Maryland, issued a nationwide halt to Trump’s EO on February 5.
Now, the Trump administration is seeking relief from the Supreme Court. The Court has requested that the states and groups challenging the EO offer responses in early April as the case is considered. Trump is facing an uphill battle, but this is not a fight he deserves to win.
In this battle, Trump’s Goliath is not merely leftist advocacy groups or activist judges but the Constitution itself. The 14th 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.” Quite plainly, the amendment grants citizenship to anyone born in the United States. However, defenders of Trump’s EO will point to that phrase “subject to the jurisdiction thereof” to argue that illegal immigrants do fall under this qualification.
When Trump considered ending birthright citizenship in 2018, Juan Davalos (among others) contended the framers of the 14th Amendment never intended for expansive birthright citizenship. Davalos cites Senator Jacob Howard, who proposed the amendment’s citizenship clause, as arguing that aliens would be ineligible for birthright citizenship. Davalos also emphasizes the fact that those from Native American tribes were considered outside of the “jurisdiction thereof” and ineligible for birthright citizenship as proof that birthright citizenship was much narrower. (Congress extended birthright citizenship to Native Americans in 1924.) Trump’s EO follows this same argument.
Despite this evidence, Davalos misses some important historical context. Abraham Lincoln’s attorney general, Edward Bates, had argued in an 1862 legal opinion that “children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States.” This topic, as Davalos acknowledges, was debated during the 14th Amendment’s ratification debate. Not every Senator who voted for the 14th Amendment’s ratification believed it would affirm broad birthright citizenship, but others thought it could and voted for it anyway.
Now, Native Americans were considered outside the jurisdiction of the United States since the adoption of the Constitution, and the 14th Amendment’s jurisdiction clause kept this in place. But aliens were not excluded. As National Review’s Dan McLaughlin notes, “‘Subject to the jurisdiction’ excluded only those who were excluded from the reach of American law — like the children of foreign diplomats and the children of sovereign Indian tribes — and does not exclude foreigners and aliens generally” (emphasis original).
Whatever the covert intents of the framers of the 14th Amendment were, they did not write a narrow birthright citizenship process into the amendment as Davalos and the Trump administration imagine.
Furthermore, birthright citizenship applied to the children of aliens has been a Supreme Court precedent since 1898. In United States v. Wong Kim Ark, the Court ruled that a man born to Chinese citizens within the U.S. was an American citizen. Justice Horace Gray wrote in the majority opinion, “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” With this understanding, Congress in 1952 used the 14th Amendment’s language into an alien and naturalization law it passed. And in case anyone’s wondering if this precedent included illegal aliens, well, the Supreme Court clarified this in 1982 through Plyer v. Doe: It does.
None of this means that birthright citizenship hasn’t been abused or shouldn’t be changed, but this does mean that President Trump lacks the authority to unilaterally change constitutional law. There is a reasonable case that Congress can take action to limit birthright citizenship’s reach, though constitutional hurdles could remain even through this route, but that’s not being discussed right now. If birthright citizenship is to be narrowed like the Trump administration wants, the best way would be through constitutional amendment. Yes, that’s a bumpy road to travel, but it’s the only way to decisively change the policy.
The Supreme Court cannot allow Trump’s EO to stand. The 14th Amendment has been understood to include aliens for almost 150 years, and even if birthright citizenship could be narrowed, the president certainly doesn’t have the power to do so. Trump may be right as a matter of policy, but he is wrong constitutionally.
Process matters.