Birthright Citizenship

I didn’t think the national debate on immigration could get any more contentious this election cycle.

I was wrong.

During an interview with Axios on HBO, President Trump spoke about his desire to modify the widely agreed, but not universally accepted (nothing ever is), legal understanding of the 14th Amendment birthright citizenship clause and revoke or terminate the birthright citizenship of children born on U.S. soil to illegal or undocumented immigrants using an executive order, believing this to be a magnet for illegal immigration, the controversially named “anchor baby” scenario. Quick point on this, children born as birthright citizens are unable to sponsor their parents for permanent residence until they turn 21 and the parents must still meet the requirements for a green card. Know the law. Get the facts. Politicians are playing you.

Whether such a proposal will be enacted is yet to be determined. This could be mere political posturing by Trump to pander to his anti-immigration base (it’s more difficult to claim to be only anti-illegal immigration when birthright citizenship is threatened), but this also could be an overture to a serious constitutional battle over restrictions to birthright citizenship and the ability of either Congress via statute or the President via executive order to define “jurisdiction” in such a way within the context of the 14th Amendment to only apply to children of citizens or lawful resident aliens and thereby exclude children born to unlawful alien residents (i.e. undocumented or illegal immigrants) based on a legal theory supported by a small number of legal scholars.

Nevertheless, let’s take a stroll through the annals of US immigration law as it pertains to birthright citizenship.

Birthright citizenship is known as jus soli (“right of the soil’ – a common law doctrine) and is a legal principle derived from English common law and is primarily practiced in the Western hemisphere being comprised of nations of immigrants. Its counterpart is jus sanguinis (“right of blood” – a civil law doctrine) and is a legal principle derived from Roman law in continental Europe and is practiced in much of the rest of the world in which national identity is largely defined by ancestry, tribe, race, or ethnicity. While US citizenship law is based on both principles and contains aspects of both (e.g. birthright citizenship, birth outside the country to a citizen parent, or naturalization), the dominant legal principle is jus soli.

While the US had no legal definition of birthright citizenship until after the Civil War, it was widely understood that birthright citizenship was a valid legal principle inherited from English common law and this legal understanding was upheld in an 1844 New York state case (Lynch v Clarke) in which it was held that a woman born to alien parents temporarily residing in New York was a U.S. citizen.

Slaves, among others, were excluded from U.S. citizenship by the 1790 Naturalization Act, an exclusion upheld by the Dred Scott v. Sandford (1857) ruling stating that slaves, former slaves, and their descendants were not eligible to be citizens. Additionally, Native American were not considered citizens because the tribes were considered to be outside the jurisdiction of the U.S. government.

The Civil Rights Act of 1866 contained a provision that declared the recently freed slaves to be citizens but also “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Fearing the Civil Rights Act might later be repealed or struck down as unconstitutional, Congress subsequently drafted the 14th Amendment a mere two months after the passage of this act.

14th Amendment
Section 1a
“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.”

One of the key defining cases for birthright citizenship came at the end of the 19th century. In United States v. Wong Kim Ark (1898) the Supreme Court held that a child born within the U.S to foreigners present on U.S. soil is a U.S. citizen with four exceptions. Three of the exclusions were based on English common law. Namely, children born to foreign rulers or diplomats, children born on foreign public ships, or “children of alien enemies, born during and within their hostile occupation.” A fourth exclusion excluded specific Native Americans on the basis of their exclusion in the 1866 Civil Rights Act. The dissent argued that the phrases “not subject to any foreign power” and “subject to the jurisdiction thereof” from the 1866 Civil Rights Act and the 14th Amendment, respectively, are synonymous and interchangeable in meaning to argue the original intent of the 14th Amendment was to exclude children born to foreigners while passing through the country.

One legal theory proposed by certain legal scholars suggests that United States v Wong Kim Ark settled the law for children born to lawful resident aliens but left the law unsettled on the question of whether children born to unlawful (i.e. undocumented or illegal immigrants) resident aliens are given birthright citizenship because the parents are not subject to the jurisdiction of the United States and assert that illegal immigrants are not under the full and complete jurisdiction of the United States. Furthermore, they suggest that the concept of jurisdiction was flawed in United States v Wong Kim Ark, leading some to believe jurisdiction can be defined by congressional statute or executive order in order to exclude children born to illegal immigrants, which is where we are today.

At first, I thought there was no path to challenge birthright citizenship as commonly understood, but there it is. The irony is that conservatives who often deride liberal justices for expansively reading into the text of the law will have to do the same in order to move beyond a plain reading or understanding of the 14th Amendment. Nevertheless, any congressional statute or executive order revoking or terminating birthright citizenship for children of illegal immigrants will swiftly be met with court challenges, setting us up for a lengthy court battle.