“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” the President said. “You can definitely do it with an Act of Congress,” he elaborated, “But now they’re saying I can do it just with an executive order.”
The President’s concerns over birthright citizenship, from birth tourism to the children of illegal immigrants, is part of a larger policy discussion that ought to be had. Does America benefit from the current practice of birthright citizenship? If the practice is curtailed or ended, do we risk the additional marginalization of immigrants and their children as some assert has been the case in Europe?
Beyond the proposed policy’s merits or shortcomings, there is a more fundamental Constitutional question: can limiting birthright citizenship even be done, short of amending the Constitution?
Critics say the President can’t touch birthright citizenship.
“Wong Kim Ark, upholding birthright citizenship, seems to have been correctly decided. It’s not crazy to ask Congress to test this by legislation. But claiming a constitutionally-based policy that’s existed for our nation’s entire history can be changed by executive order is nuts.”
Kristol’s tweet ignores that the 14th Amendment and its Citizenship Clause dates to 1868, not 1776, and that the clause can be (and has been) clarified by statute, something Section 5 of the amendment specifically makes an allowance for.
Harvard constitutional law Professor Laurence Tribe added his thoughts in a tweet:
However, Senator Lindsey Graham weighed in with the President:
As a former lawmaker, I’m more interested in the intent of the drafters of the 14th Amendment to the Constitution. What did they say about it when they introduced it in Congress?
First of all, it is important to view the 14th Amendment in context. It was forwarded for ratification after the 13th Amendment, which ended slavery at the conclusion of the Civil War in 1865. But, recently freed slaves were not necessarily citizens as their citizenship status was abridged by the Supreme Court’s infamous Dred Scott ruling in 1857. The 14th Amendment was therefore needed to elevate former slaves to the status of full-fledged U.S. citizens.
The 14th Amendment, Section 1 begins:
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…
Sen. Jacob Howard was the author of the 14th Amendment’s Citizenship Clause. On the floor of the U.S. Senate in 1866, Sen. Howard clarified the meaning of the Citizenship Clause:
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Clearly, the clause’s phrase “subject to the jurisdiction thereof” means something. The Constitution’s words cannot be accepted or ignored to suit mere political desires.
The case of Wong Kim Ark, cited by Bill Kristol, is often used by defenders of a broad interpretation of the 14th Amendment’s Citizenship Clause. This Supreme Court case was decided 30 years after the 14th Amendment’s ratification by the states. In it, the majority held that Wong Kim Ark’s parents were lawful, permanent residents who were “domiciled” in the U.S. at the time of his birth in San Francisco in 1873. Wong Kim Ark subsequently exited the U.S. and was denied re-entry under the Chinese Exclusion Act, signed into law in 1882, prohibiting all immigration of Chinese laborers. He sued, arguing that, as a U.S. citizen, the Chinese Exclusion Act didn’t apply to him. The Court found that his parents, while Chinese citizens owing allegiance to the Emperor of China, were in fact permanent residents of the U.S.—they weren’t in the nation illegally and they weren’t here on a temporary basis. Thus, Wong Kim Ark was a U.S. citizen.
Complicating matters is the fact that at the time of the 14th Amendment, most Native Americans born on reservations within the borders of the U.S. were not granted citizenship as they owed allegiance to their tribe. Individual tribal members could apply for citizenship or be considered as citizens if they were taxed and lived off a reservation. It wasn’t until Congress passed the Indian Citizenship Act of 1924, signed into law by President Coolidge, that the entire Native population became citizens—some 92% were not at the time.
The fact that a statute was needed to confer citizenship on a vast class of people born in U.S. territory 26 years after the Wong Kim Ark decision appears to throw some doubt on the argument that the 14th Amendment grants automatic citizenship to all born on U.S. soil.
These facts, combined with the fact that the U.S. Supreme Court has never directly ruled on the issue of whether those born in the U.S. to parents not here permanently or legally, makes for an opening for President Trump’s proposed executive order on the matter as well as for statutory clarification per Sen. Graham’s tweet.
Regarding an executive order, might there be guidance given to the executive branch regarding, for example, the citizenship status of children born to so-called “birth tourists?” That is, mothers, late in their term, who fly into the U.S. specifically to give birth to U.S. citizens, conferring upon the children the ability to avoid mandatory military conscription in nations such as South Korea, China, and Turkey, while giving their parents an advantage in future immigration via so-called “chain migration.”
Similarly, a statute passed by Congress and signed by a president could seek to define “subject to the jurisdiction thereof.”
In either case, litigation is almost certain to ensue and the U.S. Supreme Court would get an opportunity to directly rule on what exactly “subject to the jurisdiction thereof” means.
Both an executive order from President Trump and a statute passed by Congress and signed by the President, would be quickly brought before the federal court system, once again showing that our constitutional republic was built to withstand the passions of the moment.