President Trump’s Birthright Citizenship Order is Teed Up for the Supreme Court

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On President Trump’s first day in office, he signed an executive order that purported to end birthright citizenship in America.  The executive order offered an interpretation of the Fourteenth Amendment, claiming that the amendment “has never been interpreted to extend citizenship universally to everyone born within the United States.” Furthermore, the order prohibits federal agencies and departments from issuing or recognizing documents of citizenship to children whose fathers are not citizens and whose mothers are in the country illegally or lawfully but temporarily.

Contrary to the text of the executive order, the Fourteenth Amendment has historically been interpreted to apply to every person born within the United States.  The popular term for this interpretation is “birthright citizenship,” which describes a process where a person obtains citizenship by virtue of their birth within a particular territory.  The legal term for this process is jus soli, which is Latin for “right of birth.” Harvard Law Professor Gerald Newman says that birthright citizenship “refer[s] to citizenship by virtue of where you’re born, rather than by who your parents are.”

The concept of birthright citizenship, or jus soli, can be traced back to many European countries which America modeled its laws after.  Similarly to these European countries, the concept of jus soli initially did not apply to slaves or African Americans.  However, after the Civil War, the United States passed the Fourteenth Amendment, which provides, “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 effect of this amendment, at least in part, was to grant citizenship regardless of a person’s race.  Before the passage of the Fourteenth Amendment, African Americans were denied citizenship, as established in Dred Scott v. Sanford.  However, after the passage of the Amendment, all the children of former slaves were granted citizenship because they were born in the territory and “subject to the jurisdiction” of the United States.

Many other countries, such as Germany, Italy, and Spain, have an entirely different citizenship process, often referred to as “derived citizenship.” The legal term for this idea is jus sanguinis, or “right of blood.” Under derived citizenship, a person receives citizenship by virtue of being a blood relative to another citizen.  Thus, for countries operating under jus sanguinis, the territorial location of a person’s birth is irrelevant.  This process provides a contrast to the American one.  Under the prevailing interpretation of American constitutional law, a person may become a citizen without American parents or any blood connection to a U.S. citizen.  In fact, the United States’ naturalization laws are so territorially focused that citizenship is granted to children born on vessels in U.S. waters and planes within U.S. airspace.

Shortly after President Trump’s executive order, Professors Gregory Wallace of Campbell Law School and Bill Marshall of UNC Law offered their comments to Spectrum News.  Their consensus was that this case would likely make its way to the U.S. Supreme Court.  In the opinions of both Professor Wallace and Professor Marshall, the Supreme Court will likely declare President Trump’s order unconstitutional.

Their assertion has proven true; the executive order has made progress toward the U.S.  Supreme Court in just the past two months.  So far, federal courts in Washington state and Maryland have enjoined the executive order, with one judge calling the order “blatantly unconstitutional.” Both cases were appealed to the Ninth and Fourth Circuits, respectively, and both courts declined to issue an emergency order overruling the injunctions at the request of the Trump administration.  On March 13, the Trump administration asked the Supreme Court to step in. Truly, in Professor Wallace’s words, this issue is “teed up” for the U.S. Supreme Court.

Presented here are both sides of the constitutional argument.  First, the contemporary understanding and interpretation of the Fourth Amendment, and second, the argument presented by President Trump and sympathetic scholars.

View One: The Fourteenth Amendment Guarantees Birthright Citizenship

 Case law surrounding birthright citizenship is sparse.  In fact, the Supreme Court case Wong Kim Ark v. United States is the primary authority on the subject, and its holding has stood for over 120 years.  In Wong Kim Ark, Wong Kim was born in San Francisco, California, to two Chinese citizens who had permanent residence in the United States.  Wong Kim traveled back and forth between the United States and China, but the Supreme Court emphatically held: “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens…” The Court offers four limited exceptions to its holding––children of foreign sovereigns, children born on foreign ships, children born to enemies during a hostile occupation, and members of Indian tribes––but it clearly affirms a jus soli method of naturalization.  Justice Gray, in the majority’s opinion, recognizes the English common law tradition of birthright citizenship and emphasizes that America has continued this tradition.

The four exceptions to birthright citizenship, outlined in Wong Kim Ark, are textually implied in the Fourteenth Amendment through the phrase “subject to the jurisdiction thereof.”

Professor Josh Blackman, a scholar at the Cato Institute, argues that the original meaning of “subject to the jurisdiction thereof” was “subject to American law.” This theory would explain why the children of foreign diplomats are not granted citizenship since they are immune from American law. Also, it explains why, at the ratification of the Fourteenth Amendment, Native Americans who lived on independent tribal lands were not considered citizens. To Blackman, an originalist interpretation of the Fourteenth Amendment should focus on the government’s control over a person. For this reason, he argues that the children of illegal immigrants are not granted citizenship upon birth because their parents are residents in opposition to U.S. law. However, under the same analysis, children born to lawful residents, which Trump’s executive order also seeks to exclude, are guaranteed citizenship.

Further, Professor Gerald Newman at Harvard Law School alludes to an interpretation similar to Professor Blackman’s. However, in Professor Newman’s view, even children born to illegal immigrants are guaranteed birthright citizenship because, under his interpretation, they are subject to American laws. He says,

With respect to undocumented workers, they are people who come to the United States to work, to participate in our economy, to live in our society, to live safely in our territory. They are subject to the jurisdiction of the United States. Further, the thing that makes the immigration laws so enforceable against them is that they are subject to the jurisdiction of the United States.

Professors Newman and Blackman both approach the phrase “subject to the jurisdiction thereof” as an allusion to governmental control. Professor Blackman would point to the fact that immigrants are present in the country illegally, showing that they are not subject to governmental control, while Professor Newman would point to the fact that immigrants could be deported, showing that they are subject, in some manner, to American laws. Either way, both professors would agree that the children of lawful temporary residents are guaranteed citizenship.

Interestingly, the Supreme Court’s only reference to granting the children of illegal aliens citizenship is found in a footnote, despite the fact that the issue was not before the Court. Justice Brennan, writing for the majority, noted, “A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to.”

View Two: The Fourteenth Amendment Does Not Guarantee Birthright Citizenship

President Trump’s executive order argues that children born to parents who are unlawfully or temporarily in the United States are “not subject to the jurisdiction thereof,” and thus are not guaranteed citizenship under the Fourth Amendment.

Professor Randy E. Barnett at Georgetown Law School offers a different theory. He explains that, under an allegiance-for-protection theory, “subject to the jurisdiction thereof” refers to a person’s complete allegiance to the United States. The excluded categories, such as children born to foreign diplomats or members of Native American tribes, were thought to bear allegiances to other nations and, therefore, could not be awarded the rights of U.S. citizenship.  This theory is grounded in English common law, where a person had to swear allegiance to the monarch and pledge to obey English laws to receive protection.  Under this theory, since temporary residents still have allegiances to other territories and illegal aliens have not submitted themselves to American law, neither party’s children are guaranteed citizenship.

Professor Barnett argues that an allegiance-for-protection theory is the most accurate understanding of the Fourteenth Amendment, partly because President Lincoln and Congress espoused such a theory at the time of the Fourteenth Amendment’s enactment.  Barnett claims that “subject to the jurisdiction thereof” cannot be interpreted to mean “subject to American laws and courts” due to a conflicting Supreme Court case, Inglis v.  Trustees of Sailor’s Snug Harbor.

In Inglis, the Court held that children born to United States citizens in enemy-occupied territory are afforded the rights of U.S. citizenship, provided the territory eventually returned to the control of the United States.  Remember that U.S. citizenship has historically been interpreted to pass not by blood relation (jus sanguinis) but by place of birth (jus soli).  This means that the children in this situation do not automatically inherit citizenship from their parents.  Furthermore, if the territory is occupied by an enemy, the child is not subject to the laws of the United States.  Nevertheless, the children are afforded the rights of U.S. citizenship.  In Professor Barnett’s view, this can be explained through a protection-for-allegiance theory, but it presents an insurmountable challenge to those who claim that citizens are only those subject to American law.

In the Trump Administration’s appeal to the Supreme Court, President Trump’s attorneys focus more on the argument that the lower courts lack the authority to enjoin his executive order on a national level than on arguing in favor of the order’s merit itself.  However, on earlier occasions, President Trump’s attorneys have relied heavily on legal theories presented by conservative attorney John Eastman.

Eastman presented his theory in a University of Richmond law review article, where he focuses on the word “jurisdiction” written in the Fourteenth Amendment.  He argues that “subject to the jurisdiction” cannot simply mean “born in the territory,” or else the clause would be redundant because “born in the United States” and “subject to the jurisdiction thereof” would mean the same thing.  A well-known legal principle is that law should be interpreted, when possible, in a manner that avoids redundancy. Thus, Eastman argues that the “jurisdiction” in question must be a political, not territorial, one.

Eastman discusses the 1884 Supreme Court case Elk v. Wilkins, which alludes to the distinction between territorial and political jurisdiction. In Elk, an American Indian named John Elk, who was born on an independent reservation, moved off the reservation to another part of the United States, renouncing his former tribal allegiance. Here, Elk was born within the territorial jurisdiction of the United States but not within is political jurisdiction. The Supreme Court acknowledged this, holding that Elk was not born “subject to the jurisdiction thereof.” The Supreme Court explained that jurisdiction in the Fourteenth Amendment should be interpreted to mean “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

Like Professor Barnett, Eastman connects political jurisdiction to allegiance.  One who is subject to political jurisdiction, he argues, must have given their allegiance to the territorial polity.  But Eastman’s idea of allegiance is particularly robust, and it is on this point that he separates himself from Barnett.  Eastman argues that allegiance, in this context, refers to complete and perpetual allegiance, evidenced when a person has lost all potential allegiances to other territories.  Certain language, pulled from Justice Fuller’s dissent in Wong Kim Ark, describes this point: “[Citizens] take not simply an oath to support the Constitution of the United States, but of absolute renunciation and abjuration of all allegiance and fidelity to every foreign prince or State, and particularly to the prince or State of which they were before…” Eastman states, “That requirement still exists, though it no longer seems to be taken seriously.”

A potential issue for Barnett and Eastman’s takes could be dual citizenship, which is widely accepted under American law. A person with dual citizenship has not absolutely renounced their prior allegiance, and yet their children will be granted citizenship under the Fourteenth Amendment. If, under an allegiance for protection, one must release all connections to foreign countries before they are “subject to the jurisdiction thereof,” the citizenship of children born to dual-citizens might also be called into question.

What, then, does this mean for President Trump’s executive order?

There seem to be a myriad of theories and distinctions within those theories describing jurisdiction under the Fourteenth Amendment. Under Eastman’s theory, which is the most sympathetic to President Trump’s executive order, the children of both temporary and unlawful residents could be denied citizenship because their parents have not entirely renounced their prior allegiance.  In this scenario, even though a child is born within the territory, they would not be “subject to the jurisdiction” of the United States until they had, in some manner, perpetually aligned themselves with the American government.  If the Supreme Court were to accept this argument, it must––as Eastman suggests––overturn Wong Kim Ark.

However, if the Supreme Court affirms Wong Kim Ark, President Trump’s order would be unconstitutional, at least as it relates to lawful, temporary residents. An affirmation of Wong Kim Ark would confirm that “subject to the jurisdiction thereof” is a reference to governmental control over an individual and, in turn, reject an allegiance for protection theory. Therefore, the Supreme Court will decide much more than whether the executive order is constitutional; they will decide whether citizenship is a right of birth or a right of allegiance.