What does the U.S. Constitution say regarding birthright citizenship? The issue of birthright citizenship comes up in the 14th Amendment to the constitution. The very first sentence of the amendment reads: “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 14th Amendment was passed in an attempt to correct the decision of the Supreme Court. The framers of the 14th Amendment cited the Dred Scott v. Sandford case. A decision that held that no black American could ever be a citizen of the United States and that is considered one of the worst Supreme Court decisions in history. The amendment was necessary to overturn Dred Scott and to define the precise meaning of American citizenship. The amendment defined for the first time that no state has the power to deny citizenship, hence none may dispossess freed slaves.
What is more important to our discussion is that the amendment had two separate parts, first the criteria for American citizenship required birth or naturalization (i.e., lawful immigration), and being subject to jurisdiction of the United States.
Precisely what is meant by the phrase “and subject to the jurisdiction thereof” can be gleaned from the discussions by the drafters of the amendment at the 39th Congress. Sen. Lyman Trumbull of Illinois, a principal in writing the 14th Amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe. Sen. Jacob Howard of Michigan, an amendment sponsor, clarified the phrase by stating that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.”
Reading the “subject to the jurisdiction thereof” clause at its word, it is not a far stretch to conclude that the clause dealt more with allegiance to the U.S. than being answerable to the U.S. laws, as the clause has been taken to mean in more modern times. It must be remembered that there were and still are exceptions to birthright citizenship. It took an act of Congress to grant citizenship to Native Americans clearly born on U.S. soil but were excluded from birthright citizenship. Children of an invading army would not be granted citizenship. This is based on the same principle as the non-granting of birthright citizenship to the children born of foreign ambassadors and the like, but born on U.S. soil.
The idea that citizenship at birth is automatically conveyed is not a settled issue. In fact, there is a good deal of constitutional backing that would support a change in the birthright citizenship practice as it is now.
Next, we look at case law in this matter. Several cases have dealt with citizenship indirectly, but one stands out and is held as the controlling case.
The Supreme Court has already weighed in—sort of.
In 1884 the Supreme Court of the United States in Elk v. Wilson, 112 U.S. 94, held that children born to members of Indian tribes governed by tribal legal systems were not U.S. citizens. Then in 1924, the Congress extended citizenship to all Indians by passing the Indian Citizenship Act, 43 Stat. 253, ch. 233.
In 1898 the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649, ruled that a child born in the United States to non-citizen parents was a United States citizen under the Fourteenth Amendment. This is the case that is most looked to for support that children born to immigrants are entitled to birthright citizenship. The issue here is the case did not determine the citizenship of children born to illegal immigrants. In Wong Kim Ark, the parents were legal residents of the U.S. They had been granted status even though they were not eligible for naturalization. This is a pivotal part of the argument—those that support birthright citizenship point to the courts ruling that the child of immigrant parents born on U.S. soil was automatically a citizen. That interpretation is only partly correct.
The U.S. Supreme Court has never ruled in favor of birthright citizenship for the children of illegal immigrants. United States v. Wong Kim Ark (1898) involved the offspring of a Chinese couple present in the United States legally.
There were two Supreme Court opinions, both issued within the decade after the 14th Amendment, that are very relevant to the meaning of birthright citizenship. It must also be noted that birthright citizenship was not the determining factor in either of the cases, so the Court’s statements in both decisions are considered dicta and not binding holdings. Regardless, the Justices’ words should be considered very instructive as they were expressed by Justices who lived through the enactment of the provision, and they were well versed in the feeling of those that put the 14th Amendment forward; this put the Justices in these cases in a position to understand exactly the meaning and intention of the words in the 14th Amendment citizenship clause. The Court’s views on the meaning of the birthright citizenship provision should also be considered authoritative as the Justices were unanimous in making the statement in one case, and, in the other, the dissent did not conflict with the majority’s opinion of the citizenship issue.
In the Slaughterhouse Cases, the Court wrote that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” That view crystalizes birthright citizenship; it could be no more clear or absolute. The Court’s opinion would deny birthright citizenship to a child born in this country to undocumented immigrants or to those that are not in the U.S. legally.
Two years later, in Minor v. Happersett, the Court unanimously and expressly recognized the existence of “doubts” that citizenship was automatic for “children born within the jurisdiction without reference to the citizenship of their parents,” after noting that citizenship attaches only when the immigrant owes “allegiance” to this country.
These two Supreme Court rejections of automatic birthright citizenship for anyone born in this country, without regard to the parents’ citizenship status, are supported by the reading and understanding of the “under the jurisdiction thereof” phrase of the 14th Amendment as it was understood when it was written and enacted.
If Congress by way of legislative action or the U.S. president through his executive-order powers were to put an end to birthright citizenship for the U.S.-born children of aliens not admitted to permanent residence or those with legal status, it would undoubtedly force a lawsuit by those favoring unfettered birthright citizenship. As has happened with other challenges to President Trump’s orders, the Supreme Court would undoubtedly be tasked to render a final decision and settle the issue once and for all.
This is most likely the best path to approach the birthright citizenship issue and could very well be the underlying motive of issuing an executive order forcing the Supreme Court to decide.
Not only would the court have to weigh its own 14th Amendment jurisprudence, but the Court would also have to address the plenary power doctrine which holds that the political branches —the legislative and the executive, rather than the judicial— have sole power to regulate immigration as a basic attribute of sovereignty. This is very similar to the travel ban that was put forward by President Trump, also by executive order.
As Justice Felix Frankfurter, an immigrant himself, once held in defense of the plenary power doctrine: “Though as a matter of political outlook and economic need this country has traditionally welcomed aliens to come to its shores, it has done so exclusively as a matter of political outlook and national self-interest. This policy has been a political policy, belonging to the political branch of the Government wholly outside the concern and the competence of the Judiciary… In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit. One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”
Because immigration lies within the Congress’s plenary power to regulate immigration, many scholars and legal minds conclude that Congress has the authority to interpret the phrase and to impose reasonable limits on its application. Speaking before the House Committee on the Judiciary, Subcommittee on Immigration and Claims (June 25, 1997), California State University Professor Edward J. Erler, at a hearing on the Citizenship Reform Act of 1997 (H.R. 7), said the following:
“We have seen that the framers of the Fourteenth Amendment unanimously agreed that Indians were not ‘subject to the jurisdiction’ of the U.S. Beginning in 1870, however, Congress began to pass legislation offering citizenship to Indians on a tribe by tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become an American citizen. This citizenship was based on reciprocal consent: an offer on the part of the U.S. and acceptance on the part of an individual. Thus Congress used its legislative powers under the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923.”
That same understanding and opinion are also adopted by Judge Richard A. Posner, one of the nation’s leading appellate judges who, in a recent decision, held that “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” Posner concluded: “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”
What is the Status of Birthright Citizenship Worldwide?
The world generally does not recognize birthright citizenship. Of the developed world, the U.S. and Canada are the only developed countries to recognize birthright citizenship in the form it is now. The U.S. is one of the few countries on the globe to acknowledge universal and automatic granting of citizenship for children born to illegal and nonstatus immigrants as well as visiting tourists.
The overwhelming majority of the world’s countries do not have such a birthright policy. The Center for Immigration Studies did a survey and, among the world’s 194 countries, found that only 30 countries grant automatic birthright citizenship and only Canada is as liberal with the granting of birthright citizenship as the U.S. Of the 30 or so countries that have some form of birthright citizenship, many are limiting the practice or doing away with it entirely.
The research was done by communication with foreign government officials and analysis of relevant international law including statutory and constitutional law. Done in 2010, what the study found is that developed countries generally do not grant automatic birthright citizenship to children of illegal aliens. Of the 31 countries on the International Monetary Fund’s list of advanced economies, only the U.S. and Canada grant automatic birthright citizenship to children of illegal and temporary aliens. Similarly, the United Nations’ list of countries with “very high human development” includes only three countries recognizing universal birthright citizenship: Canada, the U.S, and Barbados, which has limited the birthright citizenship status it once allowed for children of illegal aliens.
What the President Should Do
It is my view that President Trump is within his authority to issue an executive order to curtail birthright citizenship for certain classes of immigrants. Several considerations must be addressed to make this effort possible and to have a basis that could withstand judicial challenge.
First, the changes to the granting of birthright citizenship would not be retroactive. Those immigrant children born of nonstatus immigrant parents or those for whom the status was not determined at the time of granting of citizenship will not lose their citizenship. Those already granted citizenship under the past policy would be grandfathered into the system. This must be clearly stated as there will certainly be much disinformation and honest misunderstanding of the policy going forward.
Second, the executive order should be narrowly tailored only to affect the children of those that have not entered the U.S legally. The U.S. has a legal immigration system, and those that are availing themselves of the legal procedures and laws should not be penalized. Tailoring the policy in this way will have two effects. One, the immigration system in place will be utilized more regularly and the policy of ending automatic citizenship for the children of illegal immigrant parents should diminish the incentive for tourism birth or for those immigrant parents that cross into the U.S. illegally with the express intent of having their child born on U.S. soil and gaining immediate citizenship.
It should also be pressed that those immigrating to the U.S. have to wait for granting of citizenship. It is unfair to those that comply with the law to grant immediate citizenship to the children of lawbreakers that have effectively gamed the system and, through their actions, have placed their children ahead of the long line of law-abiding immigrants that are following the legal path to citizenship.
In addition to these measures, President Trump should push for an increase in legal immigration points to handle the rise of such applications. Currently, there are 48 U.S -Mexico border crossings with 330 official ports of entry. This number should be doubled to handle both the inflow of legal immigration and to quell the call of the heavy-handedness of the policy. The president has long maintained that legal immigration through the official ports of entry is welcomed. This change in birthright citizenship will put extra pressure on those ports of entry, and the administration must make complying with the immigration regulations of the U.S. as efficient as possible.
The executive order will be challenged almost immediately in the courts, but the administration does have authority over immigration and Congress has clearly delegated the executive branch to enforce immigration law. This action will no doubt make its way to the Supreme Court for a final determination or guidance in the modification.
As in the travel ban where the president was eventually validated, placing this question in a position to force the Supreme Court to decide is a strategy that President Trump should exercise.