Can Trump End Birthright Citizenship via Executive Order?
The simple answer is no. However, the question of whether our current system of “birthright” citizenship is constitutionally legal is a very different question. We presently confer citizenship on anyone, regardless of parent’s legal status in the country, who is born in the U.S. or its territories. But is that Constitutional?
President Trump’s comments to Axios on HBO has led to a media frenzy on the topic, with reporting that shows a general lack of understanding of the 14th Amendment to the Constitution and the history behind it. Examples range from The New York Post’s statement, “President Donald Trump says he wants to order the end of the constitutional right to citizenship for babies of non-citizens and unauthorized immigrants born in the United States,” to the conservative National Review’s claim, “At first glance, the amendment’s language appears straightforward: All persons born in the United States are citizens — leading to the conclusion that if Trump and his allies want to change birthright citizenship, they’re going to have to amend the Constitution.”
Both outlet’s reporting insinuating that merely being born here grants you citizenship via the Constitution, but Constitutional scholars disagree on that point. First, let’s look at the Constitution for the definition of citizen. Throughout the main body of the U.S. Constitution, there is no legal definition or qualifications of citizenship. In fact, there was no national birthright rule within the States before 1866. Before 1866 the authority to distinguish alien from citizen was solely in the power of the States. After the Revolution, much of the pre-existing common law under English rule, including the concept of natural born allegiance (birthright citizenship of the day), was largely rejected by the States.
The general rule was that children born to transient aliens or temporary visitors remained alien. Early states also required aliens who desired to become residents of the State first to renounce any allegiances to other governments and pledge their allegiance solely to the State. The Constitution didn’t include a definition of citizenship until the addition of the 14th Amendment. Best known for the concept of “equal protection of the laws,” the 14th Amendment is one of the Reconstruction Amendments, intended to aid in the rebuilding of the nation after the American Civil war and in this case, it was meant to establish former slaves as citizens.
Section one of the amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The first sentence of section one clearly defines the requirement to be a citizen. But, there are many pro-illegal alien activists who want to debate (or flat out ignore) the meaning of the phrase, “and subject to the jurisdiction thereof”.
To best understand the meaning, as with all other parts of the Constitution, is to look at the language used and the debate leading to the framing of the amendment. During the debates of the 14th Amendment’s citizenship clause, its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns about such topics as including Chinese, Mongolians, and Gypsies to citizenship. Also, Sen. Fessenden, co-chairman of the Reconstruction Committee, raised the question of persons born of parents from abroad temporarily in this country (an issue he would not have raised if Congress were merely reaffirming the common law doctrine) and of course, the question of Indians. It is a common mischaracterization of the debates to say that Senators Trumbull, Cowan and Conness suggested both the Civil Rights Bill and the 14th Amendment would make children born to Chinese or Mongolian parent’s citizens regardless of the legal status of the parents. This conclusion is incorrect because they were, in fact, discussing whether “race” of the parents should play a role. They were not suggesting that location of birth alone should be the sole requirement of citizenship under the Fourteenth Amendment.
The historical context in place, it is clear that the framers of the 14th Amendment thought, debated, and intended for “subject to the jurisdiction thereof” to be a pivotal part of the requirement for citizenship. And while some have challenged the meaning of the phrase it should have been settled when in the case of Steel Co. v. Citizens for a Better Environment the court said that the meaning of the phrase as must be used in its “operational meaning”, which is to say how the Framers of the Amendment meant it.
Sen. Trumbull, one of the two primary framers of the 14th said, “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ It means not owing allegiance to anybody else. That is what it means.”
In our current system, precedent often stands until challenged to a higher court and then overturned. This is true even when courts rule against the Constitution. Also true is the fact that sometimes even the SCOTUS will offer an opinion that is more in line with social activism than with originalist constitutional philosophy. “Birthright citizenship” is a matter that has fallen into the realm of precedent based on 8 U.S. Code § 1401, and either intentional or unintentional interpretation of the 14th Amendment.
To clarify the meaning of “subject to the jurisdiction thereof,” Congress passed laws, but the one thing most Americans can agree on is that no law can edit, amend, or overrule the Constitution; only a new amendment can do that. If you look at the question of “birthright” citizenship from an “originalist” viewpoint, it is clear that the children of diplomats, tourists, and illegal aliens who are born in the U.S. are not eligible for citizenship.
Decades of precedent have been granting citizenship to large numbers of children who are not qualified by the standard of the 14th Amendment. Only a new hearing in federal court, going all the way to the SCOTUS can correct this issue. Can President Trump end this practice with just an executive order? No. But issuing an executive order on the matter might just be the easiest way to fast-track the question to the “Highest Court in the Land” and hopefully ending the practice of just giving away one of the most precious things that exist in this world, citizenship in the United States of America.