Within days of taking office, President Donald Trump signed an executive order that has been misconstrued by most of the talking heads out there as “ending birthright citizenship.” This characterization uses an overly broad brush to paint over what is actually an extremely nuanced issue with regard to the interpretation of citizenship in the 14th Amendment.
Section 1 of the amendment starts off with one of the most consequential lines of any of the Reconstruction Amendments passed in the wake of the Civil War: “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.”
What Trump’s executive order does is limit the interpretation of that line in the legal sense. In the order, Trump directs the government not to legally (through documentation, etc.) recognize the citizenship of anyone “(1) when that person’s mother was unlawfully present in the United States and the person’s 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 was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
In other words, if the parents are not in the United States legally, then the child is not automatically granted citizenship.
Trump in Court
The executive order was immediately challenged in court in several states, with groups like the ACLU latching themselves onto the cause, and the Trump administration has already lost in at least one federal court. The judge in that case strongly rebuked Trump’s actions.
“I’ve been on the bench for over four decades,” Senior U.S. District Judge John C. Coughenour said. “I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
Coughenour (probably) has a point. The president cannot unilaterally reinterpret an amendment, especially on a question that the Supreme Court had previously settled. But the Trump administration isn’t seeking to just unilaterally change things. It appears his team wants to take this all the way back to the Supreme Court.
But why?
What Is “Legal”?
The Supreme Court answered the question of birthright citizenship in the late 1800s, in United States v. Wong Kim Ark. Wong Kim Ark was born to parents who were legal residents, though not U.S. citizens, living in San Fransisco at the time. The family left America, though Wong came back and was denied entry into the country.
He sued, claiming he was a citizen, and the case went before the Court. Here is what they found:
- Common Law Precedent: The Court relied on the English common law principle of “jus soli” (right of the soil), which grants citizenship to those born on national territory regardless of parental nationality, except for children of foreign diplomats and enemy forces.
- Fourteenth Amendment Interpretation: The amendment’s language—”born in the United States, and subject to the jurisdiction thereof”—was meant to ensure that all persons born on U.S. soil (except specific exclusions) were granted citizenship.
- Historical Intent: The Court emphasized that the amendment aimed to settle citizenship questions definitively, particularly for children born to foreign parents residing legally in the U.S.
- Legal Precedents: The Court cited various precedents and interpretations of “jurisdiction,” concluding that Wong Kim Ark was fully subject to U.S. jurisdiction and thus a citizen.
The question comes down to one particular phrase in the amendment: “subject to the jurisdiction thereof.” The Court interpreted it, like most do, to mean that everyone born in the U.S. was automatically “subject to the jurisdiction thereof,” making them legal citizens. Some legal scholars, who agree with the Trump administration, argue that it means only those who are “subject to the jurisdiction thereof” (meaning those whose families are legally in the United States) are recognized as citizens.
The Path Forward
The Trump administration could push this ahead, fighting to keep the issue alive all the way to the Supreme Court, forcing the current Court to re-evaluate what the previous Court ruled.
There are really two ways that the change to our interpretation of birthright citizenship can happen. The first is through an act of Congress, which will probably never happen. The second is to get the Supreme Court to amend or overturn its previous ruling, which is difficult but not impossible.
There are two objectives here:
- Get the Supreme Court to reverse the previous position that “subject to the jurisdiction thereof” applies to everyone born in the United States.
- Recognize that, under this interpretation, Wong Kim Ark’s parents were “subject to the jurisdiction thereof” because they were legal residents in the United States.
If the Trump administration can convince the Justices to narrowly re-define the legal interpretation of the 14th Amendment, then his executive order will, in fact, have worked – even if the process by which he got there skirted the lines of constitutionality in the first place.
Can He Do It?
Trump’s problem is that he has essentially, two years to get things done. The midterm elections could result in Democrats retaking the House or Senate, and if that is the case, then he loses the opportunity to get much more of his agenda accomplished. Getting Congress to devote time to birthright citizenship takes away from his ability to get other things done, so he has to take the long way around – through the courts, that is.
He certainly could pull it off. He has just the right Supreme Court makeup to have a chance. The originalists on the Court will undoubtedly take a look at the fact that the original intent of the 14th Amendment was to apply to people legally in the U.S. (a fact that is in the congressional record, if you go and read up on what the authors of the amendment were discussing at the time). But it’s still a tall order.
Should He Do It?
In all honesty, I’m not convinced it’s the battle we should have right now. There are more immediate and critical needs in the fight to fix the immigration issue than to tackle birthright citizenship. However, it is something he promised, and he wants to deliver on it.
It’s one of those long-game plans. This will have very little impact in the near future, but could work long-term to dissuade birth tourism in the U.S. For immigration hawks, it’s a vital piece of the strategy to reshape how America controls its borders and protects its citizenry.
