I’ve recently fielded several questions with relation to Trump’s statement that he is planning to end birthright citizenship via executive order. These questions have come from both pro, and anti-Trump camps, and they’ve all been some iteration of “can he do this?”
I have read several answers to this question recently. Most of them can be safely reduced to “it’s the Constitution, stupid.” A few seek to offer a more nuanced view by way of close examination of the text of the 14th Amendment, and a distinguishing argument with regard to U.S. v. Wong Kim Ark. A very few have taken the bold misstep of citing the Slaughterhouse Cases.
As an aside: For anyone tempted by the language of the majority in Slaughterhouse, please refrain. While technically still good law, the opinion is not exactly on-point, and is widely viewed as a fundamental misreading of the 14th Amendment.
To answer the question of all those remotely interested in whether I believe Trump can legally eliminate birthright citizenship…it’s complicated.
- Can Trump legally amend or abrogate a constitutional right by executive order?
Generally, no. Without dragging anyone still reading this down a rabbit-hole discussion regarding executive agency interpretations of statutory grey areas in their respective ambits, the President does not have the power to directly contravene constitutional provisions or federal statutes. The President is not above the law, and may neither alter or abridge the law. I wish I could stop writing right here, but bear with me for another few paragraphs.
- Is birthright citizenship protected by the 14th Amendment?
This is a better question than the first. In 1898 the Supreme Court decided U.S. v. Wong Kim Ark. Wong Kim Ark was a Chinese laborer born to Chinese nationals in 1873. In 1882, Congress passed the Chinese Exclusion Acts. In 1895 Wong Kim Ark boarded a ship to China for a visit, and on his return was detained by a customs officer as an illegal immigrant. He filed a writ of habeus corpus, and the case was taken up by the Supreme Court.
The majority in Wong Kim Ark held that persons born in the United States, who are not the children of foreign officers or enemies of the United States, are citizens of the United States. 169 U.S. 649, 705 (1898). The holding itself is very narrow, framing the question with terrifically limiting language. The Court held that: “…a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” Id.
Before anyone gets too carried away and starts picking apart that limiting language, the majority conducted an analysis of the history of birthright citizenship in the pages before its ultimate conclusion. That analysis painted birthright citizenship with a much broader brush. Id. at 654-659. The takeaway is that anyone born within the jurisdiction of the United States to parents who are not foreign officers, and who are not enemies of the U.S. are citizens by right of birth.
The question turns on whether those who have entered the country illegally are rightfully within the jurisdiction of the United States. The opinion in Wong Kim Ark won’t be of much use to us in finding an answer. Wong Kim Arks parents weren’t illegal immigrants, there was no such thing at the time they entered the country and took up residence. That leaves two lines of inquiry: (1) The conduct of the government with regards to the children of illegal immigrants; and, (2) whether an illegal immigrant can be said to be properly within the jurisdiction of the United States.
I’m sure we’re all aware of the government’s conduct with regard to the children of illegal immigrants, but I’ll spell it out anyway. Wong Kim Ark was the last time the question was seriously raised. For over two hundred years, people born in this country whose parents were not diplomats or saboteurs have been born citizens of this country. That’s what an anchor baby is, that’s been the gripe from the political right, that’s what Trump wants to change. So, if the argument hinges on custom, there’s no question.
Jurisdiction is a trickier question, but I think, just as easy an answer. Following the analysis of the Court in Wong Kim Ark, and the arguments of Lymun Trumbull and Jacob Howard during the Senate debate on the Civil Rights Act of 1866, whether a person can be properly said to be subject to the jurisdiction of the United States hinges on whether they owe political allegiance to anyone else. I have had the dubious pleasure of reading multitudes of social media posts and several op-eds that suggest that children of illegal immigrants are not, and were never intended to be automatically granted citizenship. All of those arguments cite Trumbull, who helped author the Civil Rights Act, and the majority opinion in the Slaughterhouse Cases as support for their positions. These opinions are specious at best.
At the time the Civil Rights Act of 1866 was passed, there was no such thing as illegal immigration. Without any further information, one might surmise that it is unlikely there would be a lively debate about the status of infants born to the parents of illegal immigrants absent such a distinction. One would be right. Lymun Trumbull, who has been so oft-cited by opponents of birthright citizenship, was of the view that birthright citizenship was the law of the land at the time of passage of the 14th Amendment and the Civil Rights Act. Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498. Senator Edgar Cowan asked whether the Act would have the effect of naturalizing the children of Chinese and Gypsies born in the United States, to which Trumbull responded: “undoubtedly.” Id. He went on to say: “I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time.” Id.
Most of the debate over birthright citizenship in 1866 concerned the status of American Indians. See Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 497 (for the proposition that most of the debate regarding citizenship was focused on the status of American Indians). The question of jurisdiction was settled quickly, and in the same manner as the majority opinion in Wong Kim Ark: Children born to parents who are not foreign officers, saboteurs, or non-taxpaying American Indians are citizens.
Nothing in the 1866 debate or the opinion in Wong Kim Ark is particularly helpful to opponents of birthright citizenship. It has clearly been the practice of the government to treat all children born of foreign nationals who are not foreign officers as citizens. “Complete jurisdiction” within the parlance of the debate over birthright citizenship refers only to the notion that the parents are not members of the excepted class.
All of these arguments and decisions were advanced before the government created a class of illegal immigrants. Since that time, it has been the practice of the government to treat the children of illegal immigrants as citizens, but the Supreme Court has not issued an opinion on the matter since the creation of that class. That means that this could actually be a case of first impression, 130 years after it was ripe for challenge. I would think that the Court would have to weigh custom, and the historical definition of “complete jurisdiction” to decide if the children of illegal aliens are automatically naturalized. I, personally, don’t see why an illegal alien would not be subject to the complete jurisdiction of the U.S. Illegal aliens are domiciled here, subject to U.S. laws, can be sued, served and forced to comply with court orders and judgements, and pay taxes. They have manifested an intent to abandon their native state and escape its jurisdiction. The only distinction absent from the Supreme Court’s analysis in Wong Kim Ark is that illegal aliens, by nature of their classification, cannot be said to be permanently domiciled here. It seems clear to me that is their intent, but obviously, the threat of deportation makes their status decidedly temporary.
- What happens if the Supreme Court agrees with the administration that illegal aliens are not subject to complete jurisdiction within the meaning of the 14th Amendment and Civil Rights Act?
The President will have gotten his wish. It is unlikely to affect any children already naturalized jus soli, but could effectively prevent the naturalization of infants born to illegal aliens going forward. How that would work is a lengthy and complicated discussion I’m simply not prepared for.
- What happens if Trump issues an Executive Order and the Supreme Court finds against him?
The President will have two options. He can either (1) submit to the decision of the Court; or, (2) defy the Court and order his agencies not to grant the trappings of citizenship (such as social security numbers) to children born to parents who cannot themselves prove citizenship. The first way is the easiest, and most likely. The second scenario is possible, would result in a constitutional crisis many pundits have feared since the first time Trump compared himself favorably to Andrew Jackson, and would likely result in Trump’s victory. The Court has no means of enforcing its opinions, any action would have to be taken by Congress. In its current fractious state, it seems unlikely, to me, that they would be able to cobble together enough support in both houses to get anything done.
In conclusion, Trump may be able to legally end birthright citizenship for the children of illegal aliens if the Supreme Court accepts the argument that those children are not properly within the complete jurisdiction of the United States, because their parents are part of an excepted class. He may be able to end it anyway if he’s willing to spend the political capital, and Congress is unable to reach a consensus sufficient to enforce the law.
Edit: Obviously the political issue is more complex than the legal one, and I had decided not to address it. However, it may help some readers to understand why the Trump administration would embark on such a legally fraught course of action if they can appreciate what he stands to gain by losing. In case I wasn’t very clear, getting the Supreme Court, even with a newly minted conservative majority, to sign off on a massive change in the interpretation of the 14th Amendment is a bit of a stretch. It isn’t impossible, it happened in 2010 when the Court incorporated the 2nd Amendment, but it is unlikely. What this move does accomplish, even if it doesn’t abolish birthright citizenship for illegal aliens, is to energize Trump’s political base just days before the midterm elections. While the legal consequences are hazy, the political implications are crystal clear.
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