Can Trump’s Move to Block Birthright Citizenship Survive the 14th Amendment?
President Trump recently signed an executive order seeking to deny jus soli or birthright citizenship to the children of temporary residents of the U.S. His executive order, expectedly, includes the children of undocumented individuals and, unexpectedly, also the children of temporary, legal residents of the U.S.
This executive order has given rise to a barrage of news coverage with most observers claiming that President Trump cannot unilaterally change the criteria governing our nation’s citizenship criteria and that the 14th amendment of our constitution expressly guarantees birthright citizenship. Within hours of President Trump’s executive order, attorneys general from 22 states sued the Trump administration to block the President’s attempt to end birthright citizenship. The legal drama surrounding this executive order will play out in the nation’s courts for a long time but, that said, it is worth examining whether the 14th amendment truly precludes President Trump from moving to block birthright citizenship.
On the face of it, the 14th amendment is clear on the birthright citizenship matter. It says that “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.” Given this clause, let us consider separately the cases of the children of individuals resident in the U.S. illegally and those of individuals who are here legally.
First, the children of individuals illegally resident in the U.S. This category includes the children of undocumented migrants, individuals who have overstayed their visas, and the like. The key word in the clause quoted above is “jurisdiction.” The U.S. has no jurisdiction over the children of foreign diplomats, even though these children are in the U.S. legally. Therefore, such children are not U.S. citizens even though they are resident in the U.S. legally.
Undocumented migrants and others resident in the U.S. illegally are citizens of some foreign nation. It then seems clear that these foreign nations have legal jurisdiction over these individuals. If this is the case then these same foreign governments ought to also have legal jurisdiction over the children of these illegally resident foreigners because, using the principle of citizenship by descent, the children acquire the citizenship of their parents. If this is correct then it is difficult to see how two distinct nations can both have legal jurisdiction over the same individuals.
Closely related to the above argument is a particular kind of law-breaking. An individual who is resident in the U.S. illegally has necessarily broken one or more U.S. laws. Hence, when such a person gives birth to a child in the U.S., there is no way to separate the act of giving birth from the law-breaking that precedes it. We can now ask: Does it make sense to interpret the 14th amendment as a modification to the constitution that grants citizenship, irrespective of the circumstances surrounding the act of giving birth?
To answer this question, let us consider the perspective of originalism since it would appear that many of the justices on the current Supreme Court are originalists. Originalists believe that the constitution’s text ought to be given the original public meaning that it would have had at the time that it became law. If one adopts this perspective then it is difficult to believe that the framers of our constitution or the ratifiers of the 14th amendment in 1868 would want to reward or condone the law-breaking that necessarily precedes the birth of a child by an illegally resident parent or parents. This is why President Trump probably has a point when he says, according to the New York Times, that the 14th amendment should not be interpreted as granting citizenship universally to everyone born in the U.S.
We now come to the children of individuals legally, but temporarily, resident in the U.S. The picture is murkier here and therefore President Trump’s position is harder to defend. Key here is the point that there is no law-breaking of any kind involved. To fix ideas, consider a scenario where a married, foreign individual is admitted to a U.S. university to pursue doctoral studies in economics. He legally enters the U.S. on a F-1 (student) visa and his accompanying wife enters on a F-2 (dependent) visa. Doctoral programs in economics are standardly 4–5 years in duration. In this setting, it makes no sense to say to this student that if your wife gives birth to a child then this child will not be a U.S citizen because we have a non-standard interpretation of the 14th amendment.
If the objective is to deny birthright citizenship to temporary residents of the U.S. then it makes more sense to target birth tourism wherein expecting mothers travel legally to America to give birth and obtain U.S. citizenship for their children. This is a practice engaged in by relatively wealthy foreign citizens and there is no justification for offering the reward of U.S. citizenship to rich foreigners who may have little or no ties to the U.S.
The fate of President Trump’s executive order will, almost certainly, be determined by the Supreme Court and the outcome there is uncertain. That said, a more narrowly tailored executive order along the lines discussed here would have had a higher likelihood of passing muster with our courts.
