Trump’s order ending birthright citizenship could upend 150 years of law
In the roughly 150 years since its enactment, one could count the serious examinations of America’s birthright citizenship guarantee on one hand. But as of this month, you’d need another hand.
In one of his first acts upon reentering the White House, President Donald Trump signed an executive order ending universal birthright citizenship. Within hours, several lawsuits followed, claiming that the order is unconstitutional. The order effectively bars the United States from granting citizenship documents to children of parents in the country unlawfully or temporarily, born 30 days after the Jan. 20 order.
How the five lawsuits, including two from 23 state attorneys general, that are challenging the order will be resolved is unclear. And while the U.S. Supreme Court will likely have the final say, courts are being asked to review a constitutional provision that has faced little legal scrutiny since its writing.
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The 14th Amendment seems clear on birthright citizenship, but the Trump administration says its executive order ending this right is constitutional. Rulings on the matter will have implications beyond revoking citizenship from children of noncitizens.
“In the past few years, there’s been a lot of talk about repealing birthright citizenship. [But it’s] never come close to the Supreme Court,” says Sandra Rierson, a professor at Western State College of Law in Irvine, California. “That’s why we have this lack of precedent.”
The early legal jousts over the executive order could also be a prelude to other efforts, in Congress or via a constitutional amendment, to reform birthright citizenship.
Misinterpreted, or “blatantly unconstitutional”?
The first sentence of the 14th Amendment states, in part: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”
Enacted after the Civil War as a renunciation of the Supreme Court’s ruling in Dred Scott v. Sandford, which held that Black people are not citizens of the U.S., the birthright citizenship clause has been relatively uncontested since 1868. But while writing that the provision “rightly repudiated” the Dred Scott decision, Mr. Trump wrote in the executive order that the clause “has never been interpreted to extend citizenship universally to everyone born within the United States.”
Instead, the Justice Department is arguing that the children of parents in the country unlawfully, or on temporary visas, are not “subject to the jurisdiction of” the U.S. Last week, however, a federal judge wasn’t convinced.
“This is a blatantly unconstitutional order,” said U.S. District Judge John Coughenour, a Ronald Reagan appointee, the Associated Press reported.
Judge Coughenour made the statement as he temporarily blocked the birthright citizenship order at the request of Washington and three other Democrat-led states. The lawsuit is one of five seeking to stop the order, which is scheduled to take effect on Feb. 19. And they are the first cases in decades that ask courts to scrutinize America’s birthright citizenship laws.
In its brief in the Washington case, the DOJ for the first time laid out the legal basis for the executive order. Because the brief argued against temporarily blocking the order, it doesn’t go in depth into its legal merits.
The DOJ brief claims that “ample historical evidence shows that the children of non-resident aliens are subject to foreign powers” and thus not entitled to birthright citizenship. Yet the brief doesn’t cite any court rulings, only a commentary from Justice Joseph Story (which predates the 14th Amendment) and a commentary from Justice Samuel F. Miller.
The brief does cite a Supreme Court ruling from 1884, which held that members of Native American tribes are not “subject to the jurisdiction” of the U.S. If the country’s link to Native Americans “is insufficient for birthright citizenship,” the government argues, then the country’s link to the children of unlawful immigrants “certainly is.”
This analysis ignores the fact that an act of Congress in 1924 gave citizenship to all Native Americans born in the U.S. But Supreme Court precedent is sparse when it comes to birthright citizenship, and that 1884 case is one of the few where the high court interpreted who is, or isn’t, “subject to the jurisdiction” of the U.S.
The high court case that most directly addresses birthright citizenship, however, seems to cut against Mr. Trump’s executive order.
In an 1898 case called U.S. v. Wong Kim Ark, the court confirmed that the 14th Amendment grants American citizenship to children born in the U.S. to noncitizen parents.
The DOJ, however, argues that President Trump’s executive order “is fully consistent” with the Wong Kim Ark decision. That ruling specified that Wong Kim Ark was the child of noncitizen parents who had “a permanent domicile and residence in the United States,’’ the government notes. Thus, the case “leaves no serious doubt that its actual holding concerned only children of permanent residents.” Because the executive order applies only to the children of temporary and unlawful residents, the government argues, it is lawful.
Lauren Owens Lambert/Reuters
“Citizenship by birth within the territory”
But the history of the 14th Amendment and birthright citizenship law more generally suggest otherwise, argue opponents of the executive order.
Elsewhere in the Wong Kim Ark decision, the Supreme Court wrote that “every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
The 14th Amendment, the court added, affirms “the ancient and fundamental rule of citizenship by birth within the territory.”
Indeed, citizenship for anyone born in the U.S. is enshrined not just in the Constitution, its supporters argue, but in the foundation for all American law: English common law.
“It wasn’t like it just came out of the blue,” says Denise Gilman at the University of Texas School of Law. “We were always a citizenship by birth country because of our origins in England.”
The United Kingdom has since departed from this common law view, adopting parentage-based citizenship in 1981. The U.S. has not made a similar move, but the birthright citizenship executive order is the boldest effort yet to reinterpret the 14th Amendment.
Attempts to end birthright citizenship have been made before, but they have made little progress.
Since 2007, Republican lawmakers in Congress have routinely introduced bills that would narrow the definition of who is “subject to the jurisdiction of” the U.S. Despite solid Republican support, these bills have never been voted on by the full House or Senate.
But the debate around reforming birthright citizenship in the U.S. is more mainstream than it has been in over a century, experts say. And this means that even if the courts strike down Mr. Trump’s executive order, it could push the Republican-led Congress to take further action or perhaps energize a campaign to amend the 14th Amendment.
“The question of who is subject to the jurisdiction of [the U.S.] is very much a debatable question,” says Dan Stein, president of the Federation for American Immigration Reform, which advocates for reducing immigration into the U.S.
And the question “is not going away,” he adds. A constitutional amendment “is very possible. [And] we’re also hoping Congress will clarify this statutorily.”
The judiciary will be chiming in first, however.
Challenges to the executive order have been filed in Maryland, Massachusetts, and New Hampshire, along with two lawsuits filed in Washington that Judge Coughenour has since merged. However these lower courts rule, the Supreme Court is likely to have the final word on a question that it has rarely been asked to consider.
