Can Trump ban birthright citizenship?
Summary
Likely not. ‘Jurisdiction’ in the 19th century was understood to cover visitors to the U.S.
President Trump petitioned the Supreme Court on Thursday to stay injunctions issued by three different courts against his executive order to end birthright citizenship. The emergency application doesn’t ask the justices to rule on the merits, but they will have to do so sooner or later. I’m against birthright citizenship for the children of illegal aliens, and a majority of the justices may share that policy preference. But the court will likely hold that enacting that policy into law would take a constitutional amendment, not an executive order.
Mr. Trump’s birthright-citizenship order applies not only to illegal aliens but also to aliens lawfully in the U.S. on temporary visas. But even if it applied only to illegal aliens, the court would still probably strike it down.
The 14th Amendment guarantees citizenship to everyone “born or naturalized in the United States, and subject to the jurisdiction thereof." The opacity of the “jurisdiction" language allows reasonable people to land on either side of this issue. But in 19th-century legal usage, being “subject to the jurisdiction" of the U.S. had a long-settled, straightforward meaning. As Chief Justice John Marshall explained in Schooner Exchange v. McFaddon (1812), it meant being subject to U.S. law.
Could you be prosecuted in an American court and imprisoned in an American jail for violating American law? If so, you were subject to U.S. jurisdiction. That’s true of virtually everyone in America, including aliens, even illegal ones. Thus in Marshall’s words, “private individuals of one nation" who “spread themselves through another as business or caprice may direct" become “amenable to the jurisdiction of" that country.
Whom, then, did the 14th Amendment’s jurisdiction clause exclude? There are a few exceptions to the rule that everyone in a country must obey that country’s laws. Foreign ambassadors and their families have diplomatic immunity. When a foreign army invades and conquers another country’s territory, that land becomes subject to the conquering country’s laws. A third exception had to do with Indian tribes, which were seen as quasi-sovereign nations that weren’t directly governed by American law. But otherwise, everyone in America was subject to American jurisdiction.
The Senate’s 1866 debate over the citizenship clause reflects this understanding. Sen. Edgar Cowan (R., Pa.) objected to the clause precisely because it would make citizens out of the children of Chinese nationals and “gypsies," who belonged to different races and cultures. Sen. John Conness (R., Calif.) endorsed Cowan’s interpretation. “The proposition before us," said Conness, declares that “children begotten of Chinese parents in California . . . shall be citizens." For Conness, that was a reason to favor the amendment—so that everyone born in America, regardless of race, would be a full and equal citizen. Proponents and opponents of the Citizenship Clause agreed that it applied to aliens’ children.
The Supreme Court affirmed this in U.S. v. Wong Kim Ark (1898), which found that the U.S.-born children of foreign nationals were citizens by birth. For more than 125 years, the court hasn’t altered or qualified that holding.
Supporters of Mr. Trump’s order correctly point out that in Wong Kim Ark, the parents were lawful permanent U.S. residents, not illegal aliens (although the reasoning of the decision didn’t depend on that). They also point to case law and legislative history concerning Native Americans, because it was often argued that Indians were properly excluded from birthright citizenship due to their divided national loyalties. Indians owed some allegiance to their tribes, the argument went, and hence they weren’t “completely" subject to American jurisdiction. Similarly, this argument goes, aliens who aren’t permanent residents aren’t “completely" subject to American jurisdiction, and hence their children shouldn’t be birthright citizens either.
But this argument proves too much. If you apply the divided-loyalty theory to other groups, then the U.S.-born children of an American citizen and a foreign citizen shouldn’t be birthright citizens; neither should U.S.-born children of dual citizens. Lawful permanent resident aliens have divided loyalties too, as the Supreme Court held in Harisiades v. Shaughnessy (1952), but even the Trump order doesn’t deny that their U.S.-born children are citizens.
The Indian nations were sui generis—their quasi-independent sovereign status made them unique. In the 1860s, an Indian tribal member who killed another Indian in Indian country generally couldn’t be tried in an American court; his acts were governed by Indian law. Legally speaking, he wasn’t subject to the jurisdiction of the U.S. (The Indian Citizenship Act of 1924 granted citizenship to all Native Americans born in the U.S.) Even if an illegal or temporary alien somehow isn’t “completely" subject to U.S. jurisdiction, why would that necessarily follow for his children? The citizenship clause looks to whether the child, not the parent, is subject to U.S. jurisdiction.
The unsavoriness of “birth tourism" is another argument supporters of Mr. Trump’s executive order make. But there are better ways to quell this practice. Congress could impose harsh monetary penalties and automatic deportation on any short-stay visa aliens who enter the U.S. expecting to bear a child here.
Whatever the other disagreements, if there’s one consequence of the 14th Amendment no one has ever doubted, it’s that the U.S.-born children of black former slaves would be thereafter American citizens. In 1868 there were many blacks in America who had been brought here in violation of federal law prohibiting the importation of slaves. The 14th Amendment didn’t confer citizenship on these “illegal" blacks, although the Naturalization Act of 1870 enabled them to acquire it. But their U.S.-born children were citizens by birth. There’s no record from the 1860s of anyone suggesting that the nationality of a black child’s parents, or the legality of the parents’ presence here, had any relevance. If the child was born in America, he was an American—period.
Mr. Rubenfeld is a professor at Yale Law School.
